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1. Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute, 103 Minn. L. Rev. 844
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DAVID SCHOEN
Article: Criminal Enforcement Redundancy: Oversight of Decisions Not to Prosecute
Reporter
103 Minn. L. Rev. 844 *
December, 2018
Length: 23570 words
Author: Darryl K. Brown*
+ O. M. Vicars Professor of Law and Barron F. Black Research Professor of Law, University of Virginia School of Law.
Copyright © 2018 by Darryl K. Brown.
Text
[*844]
INTRODUCTION
In light of concerns about mass incarceration and excessive search practices by police, 1 underenforcement of criminal law is
not the first problem that springs to mind for American criminal justice. But in fact, some of the prominent contemporary
complaints about U.S. criminal justice, as well as some longstanding ones, object to underenforcement of criminal law. Two of
the most notable categories are failures to prosecute in cases of unjustified police violence, especially against nonwhite victims,
and in cases of sexual assaults. Lower-profile examples abound as well, as do historical examples.
Given the nation's history, underenforcement problems are often related to race. Insufficient law enforcement attention to
crimes in minority neighborhoods, for example, has been criticized as depriving African American victims and communities of
their fair share of government protection from criminal harm. 2 In earlier eras, law enforcement inattention to, or wholesale
neglect [*845] of, white offenders' victimization of black victims - in lynchings, attacks on civil right activists, sexual assaults,
and other contexts - was often patent. 3 But the problem of unjustified underenforcement is not confined to these contexts, nor
to the United States. Failures to prosecute arise from a fundamental structural challenge faced by all criminal justice systems:
how to ensure unbiased, evenhanded enforcement practices - safeguards in favor of justified enforcement. This challenge gets
less attention than criminal procedure's central preoccupation of guarding against excessive or groundless criminal charges.
Concern about misuse of the state's prosecution authority rightly motivates much in criminal procedure, from search and
seizure rules 4 and judicial review of arrests 5 to evidence disclosure duties, 6 the right to counsel, 7 and standards of proof. 8
1
U.S. incarceration rates quintupled over the last forty years and are five to seven times higher than those in other advanced democracies.
See Floyd v. City of New York, 959 F. Supp. 2d 540, 572-602 (S.D.N.Y. 2013) (documenting and holding unconstitutional widespread stopand-frisk
practices by New York City police that disproportionately targeted non-white men); Michelle Alexander, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness 6-9 (2010); World Prison Brief Data, Inst. for Crim. Pol'y Res. (2016),
http://www.prisonstudies.org/country/united-states-america (comparing national data on total prison population and incarceration rates and
reporting that the United States has the world's largest prison population at 2,217,947 inmates).
2
Randall Kennedy, Race, Crime, and the Law 29 (1997).
3
See, e.g., Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror 39, 48 (3d ed. 2017) (documenting
approximately 4000 lynchings in the years 1877-1950; about one percent resulted in a conviction for perpetrators).
4
See generally Wayne R. LaFave et al., Criminal Procedure 126-63, 512-49 (5th ed. 2009) (discussing search and seizure rules).
DAVID SCHOEN
103 Minn. L. Rev. 844, *845
Page 2 of 42
Structural responses to the state declining to use its enforcement authority are much fewer and less prominent. At least in
common law countries, enforcement decisions are the province of police and prosecutor discretion, and oversight of officials'
failures to enforce has been left almost wholly to the political process. Decisions to search, arrest, or charge face modest
judicial scrutiny on evidentiary grounds and - at the extreme margins - racial or [*846] ethnic bias. 9 Decisions not to arrest or
charge are virtually immune from judicial review or other nonpolitical oversight. 10 Like other common law jurisdictions, U.S.
justice systems have always rejected an approach long adopted in some civil law jurisdictions to prevent unjustified and
disparate nonenforcement - a rule of mandatory prosecution that restricts executive officials' discretion over arrest and charging
decisions. 11
A broader view, however, reveals that all criminal justice systems incorporate one or more strategies to address
underenforcement, which can be collectively described as redundant charging authority. All are to some degree familiar,
though they are not usually described in these terms or understood as serving this common purpose.
One approach is creation of two distinct enforcement agencies with overlapping or duplicative jurisdiction. This model is a
familiar safeguard against underenforcement of transnational crimes or crimes on the high seas; international criminal law
routinely grants nation-states coextensive, duplicative jurisdiction to enforce international or domestic criminal laws outside
their borders. International treaties on subjects such as public corruption, drug trafficking, and human trafficking 12 can be
understood as agreements to create enforcement redundancy among national criminal justice agencies to solve
underenforcement problems by particular states. 13 The same arrangement occurs domestically for enforcement of civil or
regulatory law when administrative agencies have overlapping, and thus redundant, [*847] jurisdiction over the same
regulated activities. 14 The most important version of this model in the United States, however, is criminal justice federalism.
Due to the steady growth of federal criminal law, jurisdiction, and institutional capacity over the last century, state and federal
5
Gerstein v. Pugh, 420 U.S. 103, 111-16 (1975) (holding that the Fourth Amendment requires a judicial determination of probable cause
prior to extended detention); County of Riverside v. McLaughlin, 500 U.S. 44, 52-58 (1991) (defining "prompt" under Gerstein's requirement
of a prompt judicial determination of probable cause).
6
Brady v. Maryland, 373 U.S. 83, 86 (1963) (holding prosecution's withholding of the confession of defendant's confederate violated
defendant's due process rights).
7
Gideon v. Wainwright, 372 U.S. 335, 342 (1963) (extending Sixth Amendment right to assistance of counsel to indigent state criminal
defendants); Powell v. Alabama, 287 U.S. 45, 53 (1932) (holding defendants' rights to counsel of their choice throughout the prosecution
process had been violated).
8
In re Winship, 397 U.S. 358, 364 (1970) (holding that proof beyond a reasonable doubt is constitutionally required under the Due Process
Clause).
9
United States v. Armstrong, 517 U.S. 456, 456-71 (1996) (examining selective prosecution claim based on racial bias); see also Whren v.
United States, 517 U.S. 806, 813 (1996) (holding that, in assessing the legality of police decisions to stop suspects under the Fourth
Amendment, courts should ignore officers' subjective motivations).
10
See, e.g., Abby L. Dennis, Reining in the Minister of Justice: Prosecutorial Oversight and the Superseder Power, 57 Duke L.J. 131, 132-33
(2007) (describing prosecutors' "limitless, unmonitored and … unreviewable power").
11
See infra Part II.B.
12
See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, G.A. Res. 55/25, annex II (Nov.
15, 2000), https://www.unodc.org/unodc/en/organized-crime/intro/UNTOC.html; United Nations Office on Drugs & Crime, World Drug
Report 2017, U.N. Sales No. E.17.XI.7 (2017), https://www.unodc.org/wdr2017/index.html; U.S. Dep't of State, Trafficking in Persons
Report 438 ( 2017), https://www.state.gov/documents/organization/271339.pdf.
13
See Neil Boister, An Introduction to Transnational Criminal Law 135-95 (2d ed. 2012),
http://opil.ouplaw.com/view/10.1093/law/9780199605385.001.0001/law-9780199605385-chapter-12.
14
See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 Sup. Ct. Rev. 201, 201-03 (2007).
DAVID SCHOEN
103 Minn. L. Rev. 844, *847
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law enforcement substantially overlap for many categories of crime. Much of this enforcement redundancy, as considered in
detail below, has been a deliberate federal response to diverse problems of underenforcement in state criminal justice. The
point for now, however, is the functional equivalence of duplicative federal-state jurisdiction, nation-state jurisdiction, and
agency jurisdiction. All represent a common strategy to reduce underenforcement by empowering redundant enforcement
authorities: independent entities with equivalent institutional capacity and expertise share jurisdiction. If one neglects to
enforce, the other may. Functionally, each backstops, or provides oversight of, failures to enforce by the other.
A second model for minimizing unjustified failures to prosecute relies on private actors to create redundancy with public
prosecutors' authority. Empowering private actors to file and litigate public law claims is familiar in many civil law contexts;
numerous federal statutes authorize private rights of action that enable private individuals or groups to supplement public
agencies' law enforcement efforts. 15 Through much of the nineteenth century, this kind of duplicative public-private
enforcement authority was a familiar feature in the criminal justice systems of many states, which permitted private parties -
victims - to prosecute alleged criminal wrongdoing.
Redundant charging authority takes other forms as well. In large hierarchical agencies such as the U.S. Department of Justice,
internal administrative review of front-line prosecutors' charging or declination decisions by higher-ups creates a version of
redundant enforcement authority; supervisors can make independent determinations and reverse front-line prosecutors. 16
[*848] This kind of redundancy through administrative review now exists in English, Irish, and many European criminal
justice systems. 17
More ambitiously from a U.S. perspective - because it is rare here - judicial power to review prosecutorial charging decisions is
another means to create some degree of redundant charging authority between the executive and judicial branches. Although
criminal charging is a core function of the executive branch, state and federal courts have modest authority to review and bar
executive officials' decisions to file criminal charges. It is only as a matter of policy that courts - with a few exceptions - are not
empowered to address underenforcement by reviewing the executive's noncharging decisions. (This power is somewhat broader
for courts in England and Wales as well as in the law of a few states.) 18 This model of redundancy separates charging
authority - for courts as for Department of Justice supervisors, the power to order prosecutors to prosecute - from enforcement
authority, which includes the institutional capacity to file and litigate charges. Courts (with rare exceptions) have no
administrative capacity to litigate a prosecution; but they could provide some redundancy in charging authority. 19
In sum, charging redundancy can occur between equivalent agencies in separate governments, between public and private
actors, or between agencies or branches of the same government. Criminal justice systems in Europe and the common law
world have adopted or strengthened one or more of these mechanisms in recent decades. In the United States, choices among
these strategies have changed over time and between jurisdictions. Nearly all states that once authorized private prosecution
have long since prohibited it. Federal prosecutors are organized in a centralized hierarchical agency that makes administrative
review possible, but few state prosecutors are similarly organized. For these reasons and others, the primary means of
enforcement redundancy to combat underenforcement is overlapping federal- [*849] state authority made possible by the
distinctive U.S. model of federalism.
15
Examples of federal statutes authorizing private rights of action include the Clayton Act, 15 U.S.C. § 15 (2006) (granting a private right of
action for antitrust violations); Federal Tort Claims Act, 28 U.S.C. § 2680(h) (1994); Title VI of the Civil Rights Act of 1964, 42 U.S.C. §
2000e-5(f) (1994); Americans with Disabilities Act, 42 U.S.C. § 12133 (1994). For an overview, see Pamela H. Bucy, Private Justice, 76 S.
Cal. L. Rev. 1, 12-54 (2002).
16
See 18 U.S.C. § 3771(f) (2012) (mandating review of federal prosecutor decisions within the Justice Department upon victim's request).
17
See infra Part II.A.1.
18
See infra Parts II.B.3-B.4.
19
Note that this conception of redundant authority intersects with, but is distinct from, constitutional separation of powers. In a standard
account (briefly put), separation of powers describes branches of government having distinct roles, authority, and competencies. In the main,
branches do not do the same things; they do different, rival, and complementary things. But if so empowered by the legislature, courts can
exercise some degree of charging authority, creating limited redundancy in charging authority between the executive and judicial branches.
DAVID SCHOEN
103 Minn. L. Rev. 844, *849
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This Article has several aims. One is to introduce the concept of enforcement redundancy and demonstrate its utility. Another is
to highlight problems of criminal law underenforcement and to situate contemporary complaints about failures to prosecute
police violence and sexual assaults as specific examples of broader enforcement deficiencies that stem from bias and favoritism
in police and prosecutorial discretion. The Article also defends the observation that enforcement redundancy strategies are
responses to versions of this problem. It then assesses the strengths and weaknesses of different such strategies, with primary
attention on the effectiveness of the U.S. approach of redundant federal-state authority. A focus on three different categories of
criminal law underenforcement - government corruption, police violence, and sexual assaults - clarifies differences in the
effectiveness of the U.S. approach. Federalism has proven an effective response to states' failures to address forms of public
corruption, and for those crimes, it is likely superior to its alternatives. Federal authority has had some success in compensating
for states' failures to prosecute police violence and other police wrongdoing, but its efficacy is harder to judge and arguments
for supplemental redundancy strategies are stronger. For sexual assaults, federal authority has failed to assert any meaningful
enforcement jurisdiction to compensate for weaknesses in state justice systems. Despite the sustained efforts and notable
successes of reform advocates in this area, no model of enforcement redundancy has made inroads.
The Article proceeds as follows. Part II briefly surveys evidence of and reasons for underenforcement. The need for safeguards
against unjustified nonenforcement has long been recognized in the United States and elsewhere; outside the United States, as
part of victims' rights reforms, it has been the object of institutional reforms. Part III elaborates the mechanisms available to
address risks of criminal law underenforcement. The predominant options are (1) some authority for private actors to initiate or
participate in criminal prosecutions; (2) judicial or administrative review of initial nonprosecution decisions by public
prosecutors; and (3) authority for a separate, independent public prosecutor's office to bring charges when another prosecutor
has declined to. Other countries - out of tradition, an absence of federalism, or as part of victims' rights reforms - rely on
versions of [*850] the first and second options. Part III also considers why U.S. victims' rights laws, which are otherwise
robust, lack either of these components adopted elsewhere, especially given that many state criminal justice systems relied on
private prosecution for much of the nineteenth century. The likely answers help explain why the United States relies almost
exclusively on the third option as a safeguard against underenforcement.
Finally, Part IV assesses how effectively federalism-based enforcement redundancy addresses underenforcement, particularly
the recurrent, contemporary controversies around police violence and sexual assault. Redundant enforcement through
overlapping federalism has had considerable success addressing some underenforcement problems, such as corruption by state
and local officials, certain kinds of civil rights violations, or crimes against disfavored minority groups. 20 It is doubtful that
private prosecution or judicial review could match its success. The federalism strategy has a more mixed record on the problem
of unjustified police violence. Federal officials have succeeded where state officials have failed in overseeing reform of local
police departments to reduce police lawbreaking, and they occasionally prosecute and convict individual officers. 21 But the
vast majority of incidents of police violence go unprosecuted, including most that lead to large civil settlements for victims. 22
20
See, e.g., David Grann, Killers of the Flower Moon: The Osage Murders and the Birth of the FBI 57 (2017) (describing "corrupt sheriffs
and police departments" that failed to enforce the law and were unable to solve serial murders of Native American victims); Margaret
Burnham, The Long Civil Rights Act and Criminal Justice, 95 B.U. L. Rev. 687, 687-88 (2015) (discussing federalism-based redundancy in
the context of the Civil Rights Acts); Gregory L. Padgett, Racially-Motivated Violence and Intimidation: Inadequate State Enforcement and
Federal Civil Rights Remedies, 75 J. Crim. L. & Criminology 103, 105 (1984) (advocating for federalism-based enforcement redundancy to
ensure punishment in crimes against racial minorities).
21
On federal reform of local police, see Rachel A. Harmon, Limited Leverage: Federal Remedies and Policing Reform, 32 St. Louis U. Pub.
L. Rev. 33, 53-56 (2012); Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform, 62 Stan. L. Rev. 1, 20-51 (2009)
[hereinafter Harmon, Policing Reform].
22
Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States 77-84, nn.149-72 (1998),
https://www.hrw.org/legacy/reports/reports98/police/index.htm (documenting "civil remedies");id. at 89-96, nn.182-200, 92-93 tbls.1-2
(documenting "low rate of federal prosecutions"); Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform, 63
UCLA L. Rev. 1144, 1147-71 (2016) (documenting civil settlements for police wrongdoing in 100 localities); Ian Simpson, Prosecution of
U.S. Police for Killings Surges to Highest in Decade, Reuters (Oct. 26, 2015), https://www.reuters.com/article/us-usa-police -
idUSKCN0SK17L20151026 (noting twelve officers were charged for fatal shootings in the first nine months of 2015, compared to about five
per year between 2005 and 2014).
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103 Minn. L. Rev. 844, *850
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It is [*851] unclear what portion of those incidents merit criminal prosecution. Key facts are often disputed, and while federal
and state jurisdiction are coextensive here, federal criminal law generally sets a higher bar for liability than state law, especially
due to its more onerous mens rea requirement. 23 That makes the former an imperfect backstop to the latter, because they are
only partially redundant. And as recent changes in federal policy suggest, 24 redundancy between governments is subject to
political shifts in those governments; federal oversight of state enforcement works only if federal officials are committed to the
oversight role. Moreover, keeping prosecution in the exclusive province of executive officials keeps prosecutorial discretion
more closely aligned with political majorities and thereby with popular sentiments about certain groups of defendants (such as
police officers) and victim groups (such as criminal suspects). In this context, redundancy in state law charging by courts or
private actors, rather than rival prosecutors, might make a real contribution. Finally, cases of sexual assault reveal a weakness
of federalism-based redundancy. State and federal criminal jurisdiction in the United States overlap more than elsewhere, but
they are not wholly coextensive. Federal prosecutors lack authority over most assaults that do not involve public officials or
federal [*852] property. Sexual assaults are one context in which the enforcement strategies favored in Europe and England -
regulated private prosecution or review of declination decisions - hold more promise.
I. UNDERENFORCEMENT AND REASONS NOT TO PROSECUTE
A. Sources of Unjustified Noncharging Decisions
Public prosecutors are the gatekeepers of criminal law enforcement, and justice systems employ a variety of safeguards against
prosecutors' misjudgment, bias, incompetence, or laziness. Most are directed at prosecutors' charging decisions rather than
decisions declining to charge (i.e., declination decisions), for familiar reasons - charging creates real burdens and risks for
defendants. 25 Many familiar procedural components are aimed at preventing improper criminal charges or the harm they can
cause. Requirements that charges are based on sufficient evidence are an obvious example, but double jeopardy laws and
restrictions on prosecutors' conflicts of interest serve the same purpose. The full range of pretrial and trial procedures designed
to assure accurate and unbiased adjudication are intended to sort out improper charges and attach punishments only to proper
ones. 26
Safeguards against nonenforcement, or unjustified decisions not to prosecute, are fewer, are less explicit, and (in common law
jurisdictions) are less often in the form of legal rules and mandates. One explanation for this is simply that the interests at stake
are not as high - no individual faces prosecution and possible punishment. Another is that many non-prosecution decisions
23
Police violence is often prosecuted under 18 U.S.C. § 242 (2012) (criminalizing the deprivation of rights under color of law). On
challenges to prosecuting police violence, including federal law's intent requirement, see Barbara E. Armacost, Organizational Culture and
Police Misconduct, 72 Geo. Wash. L. Rev. 453, 465-67 (2004); Mary M. Cheh, Are Lawsuits an Answer to Police Brutality?, in Police
Violence 247, 253, 258-66 (William A. Geller & Hans Toch eds., 1996); John V. Jacobi, Prosecuting Police Misconduct, 2000 Wis. L. Rev.
789, 806-11 (2000); Paul J. Watford, Screws v. United States and the Birth of Federal Civil Rights Enforcement, 98 Marq. L. Rev. 465, 477-
86 (2014); Mark Joseph Stern, Why the Feds Can't Charge Darren Wilson: They Should, but the Supreme Court Gutted the Civil Rights Law
He Violated when He Killed Michael Brown, Slate (Mar. 4, 2015),
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/11/will_justice_department_charge_darren_wilson_
supreme_court_gutted_civil.html; William Yeomans, The Cognitive Dissonance of Federal Civil Rights Prosecutions and Race, ACS Blog
(Feb. 13, 2015), https://www.acslaw.org/acsblog/the-cognitive-dissonance-of-federal-civil-rights -prosecutions-and-race.
24
See, e.g., U.S. Attorney Gen., Memorandum: Supporting Federal, State, Local and Tribal Law Enforcement (2017); Sari Horwitz et al.,
Sessions Orders Justice Department to Review All Police Reform Agreements, Wash. Post (Apr. 3, 2017),
https://www.washingtonpost.com/world/national -security/sessions-orders-justice-department-to-review-all-police-reform -
agreements/2017/04/03/ba934058-18bd-11e7-9887-1a5314b56a08_story.html.
25
See, e.g., United States v. Armstrong, 517 U.S. 456, 463-66 (1996) (examining the Equal Protection Clause's prohibition on raciallymotivated
charging); Wayte v. United States, 470 U.S. 598, 608 (1985) (holding due process bars prosecution in retaliation for exercising
fundamental rights); Kolender v. Lawson, 461 U.S. 352, 355 (1983) (holding due process bars unduly vague offense definitions to reduce
opportunities for selective enforcement); Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972) (same).
26
See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (regarding trial by jury as a "safeguard against the corrupt or overzealous
prosecutor").
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103 Minn. L. Rev. 844, *852
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follow from determinations that there is insufficient evidence to support charging, and common law jurisdictions [*853] have
long left those assessments in the unregulated discretion of police and prosecutors. 27
But that is not the whole story. For one, it does not follow from the fact that officials must assess evidentiary sufficiency that
their assessments should be unregulated or unsupervised. The tradition in civil law jurisdictions is otherwise, and available
evidence often depends on the effort and priority officials give to finding it. More importantly, how rigorously we guard against
unmerited nonenforcement depends on how we value the interests harmed by nonenforcement, and on how much we worry
about nonenforcement for the wrong reasons. Both have changed over time.
The primary causes of underenforcement are failing to investigate and charge due to biases against certain victims or harms, or
favoritism toward certain kinds of suspects. 28 Three kinds of crimes - local government corruption, sexual assaults, and
unjustified uses of force by law enforcement officers - illustrate the link between these risks, failures to enforce, and the
consequences of underenforcement. Local corruption garners the least public and political attention now; 29 not coincidentally,
the United States has found an effective model of enforcement redundancy on this front. 30 The justice system's responses to
sexual assault and police violence, on the other hand, are subjects of heated political and policy debates. 31 There has been
notable progress in reducing the criminal justice system's disregard of [*854] both kinds of offenses, but underenforcement -
and almost as important, widespread suspicion of underenforcement - remain significant enough that they illustrate some of the
key costs of those failures. Suspicion of underenforcement is itself a cost, because it reflects a loss of legitimacy for criminal
justice institutions. That loss in turn undermines the system's efficacy if citizens decline to report victimization or otherwise
decline to cooperate with law enforcement officials. Evidence for those effects is strong for both sexual assaults and police
violence. 32 More generally, underenforcement is a form of unequal treatment that unevenly - and unjustly - distributes the
important public benefits of criminal law enforcement, including the state's commitment to protect everyone equally from
unlawful harms. 33 It also deprives victims of the private benefits that criminal justice is now widely recognized to afford, and
owe, to victims.
27
See Morrison v. Olson, 487 U.S. 654, 727-28 (1988) (Scalia, J., dissenting) ("Law enforcement is not automatic … . What every
prosecutor is practically required to do is to select the cases for prosecution and to select those in which the offense is the most flagrant, the
public harm the greatest, and the proof the most certain." (quoting Robert H. Jackson, Attorney Gen. of the U.S., Address to the Second
Annual Conference of United States Attorneys: The Federal Prosecutor (Apr. 1, 1940))); 483 Parl Deb HC (5th ser.) (1951) col. 681 (UK) ("It
has never been the rule … that suspected criminal offences must automatically be the subject of prosecution.").
28
See Alexandra Natapoff, Underenforcement, 75 Fordham L. Rev. 1715, 1722-39 (2006) (documenting underenforcement as a significant
problem). On underenforcement of sexual assault offenses, see Deborah Tuerkheimer, Underenforcement as Unequal Protection, 57 B.C. L.
Rev. 1287, 1292-1303 (2016) (discussing empirical evidence of bias leading to underenforcement).
29
Concern about public corruption at the federal government level, by contrast, has increased, precisely where criminal and regulatory level
are somewhat weaker. See, e.g., Zephyr Teachout, Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United 1-16
(2014).
30
See infra Part III.B.1.
31
See, e.g., Do Police Use Deadly Force Too Often?, N.Y. Times: Room for Debate (Apr. 9, 2015),
https://www.nytimes.com/roomfordebate/2015/04/09/are -police-too-quick-to-use-force.
32
See Michael Planty et al., U.S. Dep't of Justice, Female Victims of Sexual Violence, 1994-2010, at 6 (2013),
https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf (estimating portion of sexual assaults reported to police annually varied from fifty-nine to
thirty-two percent between 2003-10); Nancy Krieger et al., Police Killings and Police Deaths Are Public Health Data and Can Be Counted,
PLOS Medicine 1-4 (2015), https://journals.plos.org/plosmedicine/article/file?id=10.1371/journal.pmed.1001915&type=printable
(describing underreporting of killings by police); Kate B. Wolitzky-Taylor et al., Is Reporting of Rape on the Rise? A Comparison of Women
with Reported Versus Unreported Rape Experiences in the National Women's Study Replication, 26 J. Interpersonal Violence 807, 807-08
(2011) (estimating fifteen percent of rapes were reported to police in 2006).
33
This point is better developed in literature on policing than prosecution. See, e.g., Angela J. Davis, Arbitrary Justice: The Power of the
American Prosecutor 166 (2007) (noting that prosecutorial discretion can unintentionally "produce inequitable results for similarly situated
DAVID SCHOEN
103 Minn. L. Rev. 844, *854
Page 7 of 42
1. Underenforcement Against Corruption
Crimes of corruption by state and local officials are a good example of harms that, at times, criminal justice systems have
unduly ignored. 34 Local police and prosecutors are not institutionally well-situated to pursue and evaluate those crimes. They
often have professional, if not personal, ties to other local officials, which heightens the risk of undue favoritism or judgments
that are otherwise not fully disinterested. That is the main reason [*855] that federal investigators and prosecutors have state
and local corruption in their portfolios. 35
2. Underenforcement Against Sexual Assault
Sexual assault offenses are another context in which underenforcement is now widely recognized, but the causes are different.
Rather than favoritism toward offenders, the problem seems to be bias against the type of offense, and, in varying degrees,
against the victims. Failures of police to rigorously pursue allegations of sexual assaults have been widely documented. 36
Among the explanations that advocates, attorneys and some scholars point to are "the entrenched nature of long-recognized,
gender-driven biases by police against domestic violence or sexual assault claims" and "against individuals from particular
groups or under particular circumstances," especially against victims who are poor or are racial, ethnic or gender minorities. 37
One large-scale empirical study of why rape-kit evidence remained untested, for example, suggested that the explanation in part
was "negative beliefs and stereotypes about victims, which adversely affected the quality of the investigation." 38 It bears
noting that much of this bias is understood to be subtle or unconscious patterns built on cultural norms, rather than conscious,
purposeful disfavor. 39 But when evidentiary records are incomplete or ambiguous, their effects are substantial.
[*856]
3. Underenforcement Against Police Excessive Uses of Force
Failures to prosecute in the wake of police shootings and other possibly excessive uses of force against civilians are scenarios
that raise suspicions of both bias against victims, many of whom are black men (and often criminal suspects, another disfavored
victims and defendants"); Natapoff, supra note 28, at 1753; David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1822
(2005) (arguing that policing failures in some communities undercuts "the egalitarian project of protecting all citizens from private
violence").
34
The point extends to private actors, especially organized crime, with ties to local officials.
35
See infra Part III.B.1. On local corruption, see generally, for example, Corruption and American Cities: Essays and Case Studies in Ethical
Accountability (Joaquin Jay Gonzalez III &? Roger L. Kemp eds., 2016) (discussing the role of corruption in American cities); James L.
Merriner, Grafters and Goo Goos: Corruption and Reform in Chicago, 1833-2003 (2004) (discussing the role of corruption in Chicago).
36
See Tuerkheimer, supra note 28, at 1292-99.
37
ACLU, Responses from the Field: Sexual Assault, Domestic Violence, and Policing 40 (2015); see also Tuerkheimer, supra note 28, at
1292-99 (citing a range of studies to conclude that "in many jurisdictions, the widespread perception that law enforcement officers will likely
not pursue allegations of rape [due to race, class or gender bias] is entirely accurate").
38
Rebecca Campbell et al., The Detroit Sexual Assault Kit (SAK) Action Research Project (ARP), Final Report 109 (2015).
39
Davis, supra note 33, at 23-34; Tuerkheimer, supra note 28 (discussing bias in sexual assault prosecutions); cf. ACLU, supra note 37
(surveying advocates, service providers, and attorneys, who described "the entrenched nature of long-recognized, gender-driven biases by
police against domestic violence or sexual assault claims" and "against individuals from particular groups or under particular circumstances,"
including "bias against survivors of color, and against survivors who are poor, Native American, immigrant, or LGBTQ"); Joshua Correll et
al., The Police Officer's Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot, 8 Soc. & Personality Psychol. Compass
201, 202-09 (2014) (finding that police training reduces some forms of racial bias compared to lay people in shooting simulations but
cautioning training effects may be reduced by real-world stress and fatigue conditions); Jeffery J. Pokorak, Probing the Capital Prosecutor's
Perspective: Race of the Discretionary Actors, 83 Cornell L. Rev. 1811, 1817 (1998) (discussing unconscious bias in death penalty
prosecutions).
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group), and favoritism toward the class of perpetrators, law enforcement officers. 40 In the ordinary organization of criminal
justice systems, those cases call on officials from one law enforcement agency to assess the evidence against officials from
another, even when the agencies regularly work together. 41 As in the context of local public corruption, conflict-of-interest
rules 42 are far from adequate to prevent prosecutors from making judgments in light of such professional relationships and
circumstances. 43 The possibility of partiality is inevitable. When [*857] that possibility combines with the long history of
racial disparities in U.S. criminal justice administration, widespread suspicion of non-prosecution decisions in cases of police
violence against minority civilians is hardly surprising, as the Black Lives Matter movement demonstrates. 44
4. Other Underenforcement Contexts
Corruption, sexual assaults, and police violence illustrate the key causes and effects of failures to enforce criminal law, but the
same forces are recognizably at work in other social contexts. Scholars and advocates have pointed to biases as explanations for
inadequate law enforcement responses to offenses against undocumented aliens, sex workers, institutionalized persons, and
targets of anti-LGBT hate crimes. 45 Complaints that police ignored wrongdoing against racial-minority victims in minority
communities were prominent in the 1970s and 1980s. 46 Some of [*858] the remedies, however - which included harsher
drug laws adopted with substantial support from African American politicians and communities - have proven deeply
problematic for those same communities. 47
Finally, less pernicious biases and favoritism are suspected explanations for lenient enforcement patterns in lower-visibility
contexts, such as bicyclists killed by motor vehicle drivers, 48 employees injured on the job due to workplace safety violations,
and bystanders shot by recreational hunters. 49 Even critics of those enforcement decisions in those settings view them as
products of subtle or unconscious empathy with vehicle drivers, employers, and recreational gun users, which incline officials
40
Prison guard assaults on inmates raise the same concerns, although they get less public attention. For a notorious failure to prosecute
prison guards and law enforcement officials for unjustified lethal force, see generally Heather Ann Thompson, Blood in the Water: The Attica
Prison Uprising of 1971 and Its Legacy (2016).
41
Cf. Paul Cassell, Who Prosecutes the Police? Perceptions of Bias in Police Misconduct Investigations and a Possible Remedy, Wash. Post:
Vololkh Conspiracy Blog (Dec. 5, 2014), https://www.washingtonpost.com/news/volokh -conspiracy/wp/2014/12/05/who-prosecutes-thepolice-perceptions-of-bias-in-police-misconduct-investigations-and-a-possible-remedy
(describing the problem of local prosecutors' handling
police cases as a "perception of bias" rather than a "conflict of interest" and recommending state attorneys general handle police cases). One
solution, followed in Wisconsin, is to assign investigation of deaths involving law enforcement officers to a state-level investigative agency
unconnected to the local agency of the officer under investigation.Wis. Stat.§§175.47, 950.04(1v)(do), 950.08(2g)(h) (2014).
42
E.g., Criminal Justice Standards 3-1.3 (A.B.A. 2015); cf. Braman v. Corbett, 19 A.3d 1151, 1154 (Pa. Super. Ct. 2011) (describing a
situation where a district attorney's office recused itself from decision to prosecute on a private complaint alleging the district attorney
committed rape, and the state attorney general investigated and made the decision not to prosecute).
43
For a disturbing account of prosecutorial deference to police, see Nicole Gonzalez Van Cleve, Crook County: Racism and Injustice in
America's Largest Criminal Court 127-56 (2016); David A. Harris, The Interaction and Relationship Between Prosecutors and Police Officers
in the United States, and How This Affects Police Reform Efforts, in The Prosecutor in Transnational Perspective 54, 55, 60-63 (Erik Luna &
Marianne Wade eds., 2012) (describing reasons why the prospect of police reform through the efforts of state prosecutors is "bleak"); Nicole
Gonzalez Van Cleve, Chicago's Racist Cops and Racist Courts, N.Y. Times (Apr. 14, 2016),
https://www.nytimes.com/2016/04/15/opinion/chicagos-racist-cops-and-racist-courts.html; see also Kate Levine, The Ultimate Conflict, Slate
(Sept. 11, 2014),http://www.slate.com/articles/news_ and_politics/jurisprudence/2014/09/local_prosecutor_bob_mcculloch_should_
not_be_the_one_to_decide_whether_to.html. For a harrowing account of a federal prosecutor who did not show deference to fellow law
enforcement officials and faced apparent retaliation for it, see Paul Butler, Let's Get Free: A Hip-Hop Theory of Justice 1-21 (2009).
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to assess conduct as non-negligent rather than reckless. 50 Yet even those relatively benign affinities can lead to sub-optimal
enforcement policies that might benefit from redundant evaluation of charging decisions.
B. Other Contributions to Underenforcement
It is worth noting that prosecutors themselves might not share those biases so much as take account of them in a local
community and jury pool. Expecting juries will be unreceptive to a case is one reason that some prosecutors cite for not
charging in some cases. There is evidence for this with regard to hate [*859] crimes against LGBT victim groups, for
example, 51 and the difficulty prosecutors have faced in convicting police officer defendants is a well-recognized hurdle in
police violence cases. 52 The same considerations can cut against prosecutions when victims are undocumented immigrants,
sex workers, prisoners, and suspects in custody. 53 Redundant enforcement authority can do less to redress this barrier,
although depending on its form, it is not powerless. A separate prosecuting authority might bring better investigation and fact
development, or different jurisdictional rules that change the composition of jury venires. 54
Inadequate funding for criminal justice agencies can also play a role in aggravating areas of unjustified underenforcement.
Lack of public resources is an accepted (and inevitable) justification for declining to prosecute in some cases where evidence is
sufficient to prove guilt. 55 But funding constraints are [*860] not an affirmative good on par with other policy-based, publicinterest
justifications for non-prosecution, such as judgments finding that civil, regulatory, or public-health remedies are
preferable to criminal sanctions, or concluding that third-party harms outweigh prosecution's benefits. 56 Resource constraints
are a problem justice systems would like to minimize. Two of the three primary forms of enforcement redundancy do exactly
that, or have in the past. Expanding federal law enforcement jurisdiction over crimes already within state jurisdiction was
designed to bring federal resources to bear on crimes where state resources were insufficient. 57 And private prosecution,
where it [*861] still exists, has an equivalent effect - it permits victims to contribute private funds to public enforcement
efforts. It is no coincidence that common law jurisdictions relied on private prosecution most heavily - through the midnineteenth
century - when state capacity, including criminal justice infrastructure, was much thinner. 58
44
See, e.g., Paul D. Butler, Poor People Lose: Gideon and the Critique of Rights, 122 Yale L.J. 2176, 2204 (2013) (describing protest
movements and other responses to racially disparate criminal justice policies); Roseanna Sommers, Will Putting Cameras on Police Reduce
Polarization?, 125 Yale L.J. 1304, 1307-17 (2016) (describing polarized public perceptions of, and protests against, police uses of force and
non-prosecution of police); What We Believe, Black Lives Matter, https://blacklivesmatter.com/about/what-we-believe (last visited Oct. 30,
2018).
45
See Avlana Eisenberg, Expressive Enforcement, 61 UCLA L. Rev. 858, 861-64 (2014) (studying the reasons prosecutors choose not to
charge hate crimes); Natapoff, supra note 28 (summarizing evidence of underenforcement of crimes against prostitutes, undocumented
immigrants, residents of certain low-income neighborhoods, and drug-crime suspects); see also Human Rights Watch, supra note 22, at 102
("In fiscal year 1997, the [DOJ] Civil Rights Division received a total of 10,891 complaints [against law enforcement officers], … leading to
twenty-five indictments and informations, involving sixty-seven law enforcement agents; nine were convicted, nineteen entered guilty pleas,
and four were acquitted."); Ryan Gabrielson et al., Deadly Force, in Black and White, ProPublica (Oct. 10, 2014),
https://www.propublica.org/article/deadly-force-in-black-and-white ("Analysis of killings by police shows outsize risk for young black
males.").
46
See Kennedy, supra note 2, at 29-75 (providing a broader account of complaints about law enforcement providing insufficient protection
to black communities); Rod K. Brunson & Ronald Weitzer, Police Relations with Black and White Youths in Different Urban
Neighborhoods, 44 Urb. Aff. Rev. 858, 876 (2009) ("Perceived police under-protection or poor service in poor, minority neighborhoods has
been complained about for generations … .").
47
Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment 173-216 (2015) (describing
support from working-class and middle-class blacks for punitive drugs laws in the 1970s as a means to fight growing disorder in black
communities); Kennedy, supra note 2, at 351-86; David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1285-90
(1995) (describing the effects of anti-cocaine laws on black communities). Underenforcement of criminal law by southern states through the
1960s, when civil rights activists were the victims, are another example.
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When resource constraints remain, however, they force officials to choose which cases get priority. That creates more
opportunity for biases and favoritism to play a role in determining which cases to charge and which to forgo. That is especially
so with crimes in which evidence development is more costly, so officials have to decide whether to invest scarce resources in
those that require substantial investigative efforts. Both sexual assault and police violence cases often require larger-scale
investments to develop evidence sufficient for prosecution. Failures to make those investments are common reasons for nonprosecution
in both contexts. 59
II. MECHANISMS OF PROSECUTORIAL ACCOUNTABILITY
For a range of reasons and across a range of contexts, public prosecutors' failures to enforce criminal law have been of
sufficient concern to lead contemporary justice systems to devise checks against unjustified underenforcement. Approaches
take three basic forms: (1) limited authority for private parties to initiate or participate in criminal prosecutions; (2) independent
review of initial non-prosecution decisions, upon petition from a [*862] victim; and (3) multiple, independent public
prosecution agencies with independent authority to bring charges for the same wrongdoing. Outside the United States, the first
two options predominate; their expansion in recent years is a direct consequence of broader reforms to expand crime victims'
rights. 60 U.S. jurisdictions, however, rely almost wholly on the third model. Despite having adopted otherwise expansive
victims' rights laws in recent decades in response to an influential movement for crime victims' rights, state and federal laws
consistently and explicitly avoid granting any formal authority to private parties, or courts, over criminal charging. The next
three Sections provide an overview of these options, where they exist. Largely with regard to U.S. policy choices only, they
also suggest reasons that one model prevailed over others.
A. Victim Rights and Private Versus Public Interests
In the wake of victims' rights movements in North America and Europe, crime victims now have an array of legal rights once
criminal charges are filed. Victims in the U.S. and European jurisdictions now commonly have rights to participate that include
rights to consult with prosecutors, to be notified of and present at court proceedings, and to offer statements at stages such as
hearings on bail, sentencing, and parole. 61
48
See Daniel Duane, Is It O.K. to Kill Cyclists?, N.Y. Times (Nov. 9, 2013), https://www.nytimes.com/2013/11/10/opinion/sunday/is-it-okto-kill-cyclists
.html (discussing failures to prosecute motor vehicle drivers who injure or kill bicyclists); see also BikeMaps.org,
https://bikemaps.org (last visited Oct. 30, 2018) (displaying a crowd-sourced map of locations of cyclist injuries and fatalities).
49
See John F. Decker, Don't Forget to Wear Your Hunter Orange (or Flack Jacket): A Critique on the Lack of Prosecution of Hunting
"Accidents," 56 S.C. L. Rev. 135, 166-73 (2004).
50
See id.; Duane, supra note 48.
51
Eisenberg, supra note 45, at 893-96 (discussing data from prosecutor interviews). In the contexts Eisenberg describes, prosecutors
typically forgo hate-crime offenses in favor of other charges rather than declining to prosecute altogether. Though the focus here is on
prosecutors, they may not be the key cause of underenforcement. For similar reasons, police may not investigate or arrest in such cases, or if
they do prosecution can be undermined by lax evidence-gathering. Police practices are the focus on much of the scholarship on
underenforcement of certain offenses. Much of the literature on inadequate enforcement of sexual assault crimes focuses on weaknesses in
the police rather than prosecutors. See, e.g., Tuerkheimer, supra note 28, at 1292-99 (discussing evidence of police bias).
52
See, e.g., Alan Blinder, Michael Slager, Officer in Walter Scott Shooting, Gets 20-Year Sentence, N.Y. Times (Dec. 7, 2017),
https://www.nytimes.com/2017/12/07/us/michael-slager-sentence-walter-scott.html (explaining that an officer pled guilty in federal court
after a 2016 prosecution in state court ended with a hung jury).
53
See Natapoff, supra note 28.
54
See, e.g., id.
55
See U.S. Dep't of Justice, United States Attorneys' Manual § 9-27.230 cmt. 1 (1997) (recognizing limited prosecution resources); see also
Human Rights Watch, supra note 22, at 99 (listing "lack of investigative or prosecutorial resources" among the most common reasons noted
by the federal Civil Rights Division for declining to prosecute); U.S. Dep't of Justice, FY 2013 Performance Budget: Civil Rights Division 39
(noting that strengthening of civil rights enforcement efforts under the "Vulnerable People Priority" policy "has been reversed because full
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Under the criminal justice systems of all other major common law countries and nearly all European states, victims' rights also
include authority to challenge prosecutors' decisions not to prosecute, either by a limited right to initiate prosecutions as private
parties or by enabling victims to trigger judicial or [*863] administrative review of noncharging decisions. 62 By contrast,
nearly every U.S. jurisdiction rejects these mechanisms. State and federal laws consistently avoid permitting victims any power
to challenge or encroach on public prosecutorial authority. Federal law, for example, explicitly dictates that "nothing in this
[victims' rights] chapter shall be construed to impair the prosecutorial discretion of the Attorney General or any officer under
his direction." 63 State statutes manifest the same policy in various ways, such as by prohibiting legal remedies for violations
of participation rights they create. 64 U.S. laws limit victims' participation to "non-dispositive" forms, such as providing
information and personal statements to prosecutors, judges, and parole boards, which facilitates victims' influence on public
officials' decisionmaking. 65 But state and federal policy rejects enlisting victims as "agents of accountability" for public
prosecution. 66
In U.S. jurisdictions and elsewhere, the conceptual innovation of victims' rights laws was to recognize victims' distinct private
[*864] interests in public criminal litigation. Most rights are specific entitlements to advance victims' broader, dignitary right
to be "treated with fairness and with respect for the victim's dignity." 67 These provisions conceive of victims as "agents of
individual rights" and "independent from systemic interests," and their interests can either conflict or align with those of law
enforcement. 68 At the same time, victim participation rights can also be understood to serve a broader public interest in
procedural outcomes, on the premise, for example, that prosecutors' and judges' decisions will improve with direct input from
victims. Public decisionmaking risks substantive deficiency, and criminal process would be procedurally deficient, without due
regard for victims' interests. Jurisdictions that empower victims to challenge non-prosecution decisions enable private parties
themselves to address the problem of criminal law underenforcement. The remainder of this Section provides some detail on
contemporary forms of private prosecution authority, their capacity to advance public as well as private interests, and reasons
for its absence (or demise) in U.S. jurisdictions.
1. Private Prosecution in the Shadow of Public Prosecution
funding of these program areas was not provided"). In specific contexts as diverse as tax law and marijuana control, legislators intentionally
limit enforcement budgets in order to restrict enforcement efforts. See Daniel C. Richman, Federal Criminal Law, Congressional Delegation,
and Enforcement Discretion, 46 UCLA L. Rev. 757, 793-99 (1999) (discussing agency budget appropriations as a mechanism of congressional
control over some agencies, such as the IRS, more than others, such as the FBI); Rachael Bade, Republicans Seek to Cripple IRS: The GOP's
Moves Will Gut the Tax Agency, Advocates Warn, Politico (Dec. 11, 2014), https://www.politico.com/story/2014/12/republicans-irsregulations-113484
(quoting a senator's aim to use "the power of the purse" to "push back on the regulatory overreach" of the IRS and EPA);
Douglas A. Berman, Mixed Outcomes for Marijuana Reform Efforts in Latest Omnibus Spending Bill from Congress, Sent'g L. & Pol'y Blog
(Dec. 16, 2015),http://sentencing.typepad.com/sentencing_law_and_policy/2015/week51/index.html (describing H.R. 4660, enacted as part of
a spending bill, which prohibited spending of Justice Department funding to hinder state medical marijuana policies).
56
See, e.g., Crown Prosecution Serv., The Code for Crown Prosecutors 4 (2013),
https://www.cps.gov.uk/sites/default/files/documents/publications/code_2013_accessible_english.pdf (providing guidelines for England and
Wales). Familiar policies include declinations based on first-offender or drug-court diversion programs, the adequacy of civil penalties, a
policy preference for public health responses to drug abuse, and - with regard to marijuana - federal deference to state policymaking. See
Memorandum from James M. Cole, Deputy Attorney Gen. to U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29,
2013),http://www.justice. gov/iso/opa/resources/3052013829132756857467.pdf (describing Justice Department policy not to prosecute
marijuana dealers who comply with state law). For local examples, see Joseph Goldstein, Spare a Swipe? New York City Eases Rules for a
Subway Request, N.Y. Times (Apr. 17, 2016), https://www.nytimes.com/2016/04/18/nyregion/spare-a-swipe-new-york-city-eases-rules-for-asubway-request.html
(describing a new policy "by the Manhattan district attorney's office to no longer prosecute people arrested for minor
infractions such as swipe-begging, smoking in the subway, or taking up two seats on a subway car"); Greg LaRose, No Arrests for Pot
Possession in New Orleans, Council Decides, Nola.com (Mar. 17, 2016),
https://www.nola.com/politics/index.ssf/2016/03/marijuana_possession_ city_coun.html (reporting city council vote to expand range of
marijuana offenses for which police do not have to arrest offenders or charge as state criminal misdemeanors); Max Taves & Justin Scheck,
San Francisco Police Ease Drug Enforcement, Wall St. J. (Aug. 1, 2012),
https://www.wsj.com/articles/SB10000872396390444226904577559243414878630 (describing police treating drug possession crimes as a
low priority in part because the chief prosecutor "looks at drug possession as a health issue"). Seattle city voters in 2003 approved Initiative
75, which established adult personal marijuana use as "Seattle's lowest law enforcement priority." Seattle Voters Approve Initiative Making
Marijuana Enforcement City's "Lowest Priority," NORML (Sept. 18, 2003),http://norml.org/news/2003/09/18/seattle-voters-approveinitiative-making
-marijuana-enforcement-city-s-lowest-priority.
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Public prosecutors now dominate enforcement decisions in both common law-based and civil law-based justice systems
worldwide. That is hardly surprising, given the far-reaching regulatory scope of modern criminal law and high expectations that
the state will ensure security against social disorder and innumerable harms, and will intervene in risk creation long before
manifest criminal conduct or injury. 69 That agenda requires capacity, resources, and expertise that only public agencies can
marshal. Moreover, a criminal enforcement regime that relied heavily on private plaintiffs would be one skewed against redress
for poor victims who cannot bear litigation costs to vindicate their own interests. 70 Without safeguards, such a regime [*865]
also could be at the mercy of the varied, perhaps idiosyncratic motives and interests of private actors lodging criminal
complaints.
Still, many countries continue to authorize private citizens to initiate criminal prosecutions when public officials do not, and
others allow privately funded attorneys to assist or supplement public prosecutors in litigating criminal cases. Canada,
Australia, New Zealand, and England and Wales all continue to allow private prosecutions, 71 and fifteen of the twenty-eight
member states of the European Union grant victims some comparable [*866] authority. 72 Details vary across jurisdictions,
but everywhere private prosecutors' authority is limited by oversight from public [*867] prosecutors and courts. 73 The
standard common law model is that public prosecutors retain the power to take over privately filed charges and then either try
the case themselves, negotiate a plea bargain, or - more commonly when intervention occurs - dismiss the charges altogether.
In this framework, private actors can press charges when public officials do not, but functionally they serve primarily as a
mechanism for political accountability. Through private charging in the wake of public prosecutors' declination, victims force
public officials to justify publicly their reasons for not charging and for vetoing privately filed charges - and to do so on
grounds other than public resource constraints, given that a private actor has offered to bear the costs. Given the private cost
barriers and the capacity of public prosecution agencies, it is unsurprising that, even where permitted, privately initiated
charges nonetheless contribute to a tiny fraction of prosecutions on criminal dockets. 74
2. Abolition of Private Prosecution in State Criminal Justice
U.S. jurisdictions are comparative exceptions; nearly all long ago prohibited privately initiated prosecutions, 75 even though in
other contexts private actors continue to enforce public law in service of public interests. 76 But private criminal charges were
57
See Harmon, Policing Reform, supra note 21, at 20-51. Federal funding to state and local enforcement agencies is a more direct example
of supplementing resources. Federal influence over local enforcement policies that comes with such funding is an attenuated version of
enforcement redundancy. Id. at 66.
58
On staffing of state prosecutor offices in the nineteenth century, see Nicholas R. Parrillo, Against the Profit Motive: The Salary
Revolution in American Government, 1780-1940, at 11-23 (2013).
59
On sexual assault cases (especially reasons for not testing evidence gathered in rape kits), see Campbell et al., supra note 38, at 60-100;
Tuerkheimer, supra note 28, at 1297. On police use-of-force cases, see Human Rights Watch, supra note 22, at 99 (reporting that the Justice
Department Civil Rights Division's "most common reasons for declining prosecution were: weak or insufficient admissible evidence … ; lack
of evidence of criminal intent; … and lack of investigative or prosecutorial resources"). For a good analysis of how police shootings of
"unarmed victims" vary widely in critical factual details and why many are justified, see Heather Mac Donald, Black and Unarmed: Behind
the Numbers: What the Black Lives Matter Movement Misses About Those Police Shootings, Marshall Project (Feb. 8, 2016), https://www
.themarshallproject.org/2016/02/08/black-and-unarmed-behind-the-numbers.
60
See, e.g., Council Directive 2012/29, 2012 O.J. (L 315) 57 (EC), http://eur -lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:32012L0029
(defining standards for treatment and rights of crime victims in E.U. member states); Marie
Manikis, Conceptualizing the Victim Within Criminal Justice Processes in Common Law Tradition, in Oxford Handbook on Criminal
Process (Darryl K. Brown et al. eds., forthcoming 2019) (manuscript at 18-19) (on file with author).
61
For an overview of victim rights in Europe, see Slawomir R. Buczma, An Overview of the Law Concerning Protection of Victims of
Crime in the View of the Adoption of the Directive 2012/29/EU Establishing Minimum Standards on the Rights, Support and Protection of
Victims of Crime in the European Union, 14 ERA F. 235, 239-41 (2013). On U.S. jurisdictions, see Crime Victim Rights Act (CVRA), 18
U.S.C. § 3771(a) (2012) (enumerating the federal rights of victims of crime); Michael Solimine & Kathryn Elvey, Federalism, Federal
Courts, and Victims' Rights, 64 Cath. U. L. Rev. 909, 913-14 & nn.30-31 (2015) (collecting all thirty-two state constitutional provisions and
all fifty state statutes relating to victims' rights).
62
See infra Part II.B.
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once common and significant in many state justice systems. U.S. colonies and states created public prosecution offices much
earlier than England. 77
[*868] Even so, in the nation's earliest decades, those officials were often part-time or short-term officials, whose duties were
often primarily quasi-judicial or administrative. 78 For those reasons, in many states those officials coexisted alongside private
prosecutors with whom they shared some similarities. Early public prosecutors were paid by the case or the conviction 79 and
pursued cases from private complainants. 80 But by the mid-nineteenth century, every state had public prosecutor offices of
some sort. 81 Increasingly, they were full-time and accompanied by [*869] public police forces. In this context, private
prosecutions diminished, then vanished. 82
However, because public prosecutors continued to suffer from poor funding (and consequently were held in low regard), 83
some states continued an alternate form of private prosecution: privately funded attorneys could assist in criminal prosecutions
as long as the public prosecutor supervised or retained formal control. 84 This form of ancillary or supplementary private
prosecution, which leaves charging decisions in public hands, is still permitted in several states. 85 Otherwise, only vestiges of
private [*870] prosecution remain in a few states. Pennsylvania seems to have the strongest version: it permits private
prosecutions for any offense upon the approval from a state prosecutor or a judge. 86 Rhode Island authorizes private
prosecutions only for misdemeanors. 87 Under state common law, New Hampshire might permit the same for nonjailable
offenses. 88 Beyond that, judges in many states can issue an arrest warrant or criminal summons based on a private person's
testimony, but public prosecutors control whether to go forward with the case. 89
[*871] In sum, U.S. jurisdictions are unusual among common law jurisdictions in having abolished private prosecution as a
means to vindicate victims' private interests, a supplement to public enforcement resources, and a structural check on selective
underenforcement from biases in public prosecutors' discretionary decisions not to charge. English authorities, in contrast,
explicitly recognize this public function for private prosecution. Private actors' authority to second-guess declination decisions -
charging decision redundancy - operates as "the ultimate safeguard for the citizen against inaction on the part of the
authorities." 90 The only remnant of this view in the United States seems to be in Pennsylvania. Its courts view victim-initiated
63
18 U.S.C. § 3771(d)(6). Elsewhere, regarding victim complaints of rights violations to the Justice Department, the statute provides that
"the Attorney General … shall be the final arbiter of the complaint, and that there shall be no judicial review of the final decision of the
Attorney General by a complainant." Id. § 3771(f)(2)(D); see also United States v. Thetford, 935 F. Supp. 2d 1280, 1282 (N.D. Ala. 2013)
("These rights, however, do not extend to giving crime victims veto power over the prosecutor's discretion."); Does v. United States, 817 F.
Supp. 2d 1337, 1343 (S.D. Fla. 2011) ("To the extent that the victims' pre-charge CVRA rights impinge upon prosecutorial discretion, under
the plain language of the statute those rights must yield.").
64
See, e.g., Ohio Rev. Code Ann. § 2930.06(A) (West 2004) ("A prosecutor's failure to confer with a victim … does not affect the validity"
of a decision to dismiss charges, plea agreement, or other disposition). Only a few jurisdictions, such as California and the federal system,
provide for meaningful enforcement of participation rights by, for example, allowing victims to intervene in trial proceedings to demand
rights, or to appeal trial court violations; to facilitate a remedy, courts may order that a guilty plea or sentence be re-opened. See Cal. Const.
art. I, § 28(c)(1) (stating that a victim may enforce a list of enumerated rights in trial or appellate court "as a matter of right"); 18 U.S.C. §
3771(d); cf. Paroline v. United States, 134 S. Ct. 1710, 1718 (2014) (providing an example of a decision resulting from a victim's appeal of a
restitution order).
65
See Ian Edwards, An Ambiguous Participant: The Crime Victim and Criminal Justice Decision-Making, 44 Brit. J. Criminology 967, 974
(2004) (classifying "dispositive" and "non-dispositive" forms of victim participation and putting modes of consultation, informationprovision,
and expression under the latter heading).
66
See Marie Manikis, Expanding Participation: Victims as Agents of Accountability in the Criminal Justice Process, Pub. L. 63, 69 n.29
(2017).
67
See, e.g., Ohio Const. art. I, § 10(a) (establishing victims' rights to "fairness, dignity, and respect"); Tex. Const. art. I, § 30(a)(1)
(establishing victims' "right to be treated with fairness and with respect for the victim's dignity and privacy"); 18 U.S.C. § 3771(a)(8)
(establishing victims' "right to be treated with fairness and with respect for the victim's dignity").
68
Manikis, supra note 60.
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prosecutions as fulfilling the same structural purpose. Allowing private actors to begin prosecutions meets "the need for a
system of checks and balances on the office of the district attorney" and "constitutes a recognition by the legislature that the
office of the district attorney should be subject to a system of checks and balances." 91
The rarity of private charges in jurisdictions that authorize them hardly justifies their abolition. Private prosecutions should be
rare in well-functioning public prosecution systems, because public agencies pursue most provable cases and because private
actors must bear considerable costs to press charges themselves. Moreover, other rules and institutions - including other
safeguards on prosecutorial charging - endure despite few indications of their utility. There has never been a successful claim
that a criminal charge violated the Equal Protection prohibition on racially biased charging, 92 but few argue the doctrine lacks
at least normative value. 93 Grand juries rarely reject prosecutors' [*872] charging requests for indictments, but courts
continue to tout them as a structural check on prosecutors. 94 Like private prosecution, these safeguards may work by deterring
biased or ill-conceived prosecutorial decisions; their efficacy is probably impossible to measure.
A contributing explanation for the U.S. aversion to private prosecution may lie in a familiar theme of U.S. law and history:
race. During the first several decades of the nineteenth century, when private citizens could prosecute crimes, many states - and
not only Southern ones - either denied African Americans legal capacity as litigants 95 or barred them from testifying under
oath on the basis of race. Among other effects, those barriers barred private prosecutions by African Americans. 96 After 1865
- an era in which rights to litigate and testify were viewed by many as more meaningful than the right to vote 97 - those racebased
legal disabilities were abolished. 98 In the same period, private charging authority, already on the decline, was abolished
in most [*873] states that still permitted it. States that retained a formal litigation role for crime victims did so by allowing
privately funded attorneys to assist in prosecutions filed and controlled by public prosecutors, thus ensuring that public officials
are the exclusive gatekeepers of criminal law enforcement. Between the 1840s and 1860s, prosecutors had become locally
elected officials in nearly all states. That effectively aligned their charging monopoly with the preferences of local white
majorities (or white minorities in localities in which black citizens were the majority, once Southern whites succeeded in
disenfranchising black citizens). 99 Evidence for the relationship between race and the demise of private prosecution is
69
Among myriad examples are crimes of preparation, conspiracy, possession of contraband, consensual exchanges (e.g., of drugs or sex for
money), and many kinds of criminal attempts. See Andrew Ashworth & Lucia Zedner, Preventive Justice 95-118, 171-223 (2014).
70
Douglas Campbell, 2 The Puritan in Holland, England, and America 444 (1892) (criticizing the English system of private prosecution as
one "by the rich for the rich"); Joan E. Jacoby, The American Prosecutor: A Search for Identity 17 (1980). German victims who challenge a
non-prosecution decision must put up security to cover the public costs of judicial review. See Strafprozessordnung [StPO] [Code of Criminal
Procedure], § 176, translation at https://www.gesetze-im-internet.de/englisch_stpo/englisch_stpo .html; Ante Novokmet, The Right of a
Victim to a Review of a Decision Not to Prosecute as Set out in Article 11 of Directive 2012/29/EU and an Assessment of Its Transposition
in Germany, Italy, France and Croatia, 12 Utrecht L. Rev. 86, 94 (2016).
71
For England and Wales, see Prosecution of Offences Act 1985, c. 23, § 6, https://www.legislation.gov.uk/ukpga/1985/23 (stating that the
creation of Crown Prosecution Service shall not "preclude any person from instituting any criminal proceedings or conducting any criminal
proceedings"). For Canada, see, for example, Ontario Provincial Offences Act, R.S.O. 1990, c. P.33; Director of Public Prosecutions Act,
S.C. 2006, c 9, § 121, para. 3(3)(f) (describing DPP "duties and functions," which includes "exercising the authority of the Attorney General
respecting private prosecutions, including to intervene and assume the conduct of - or direct the stay of - such prosecutions"); Private
Prosecutions, Ministry Att'y Gen., https://www.attorneygeneral.jus.gov.on.ca/english/private_prosecution.php (last modified Oct. 29, 2015)
(describing private prosecutions and noting "the Criminal Code and the Crown Attorneys Act authorize Crown Counsel to supervise privately
laid charges to ensure that such prosecutions are in the best interest of the administration of justice" and to "take over the prosecution" of
indictable offences); Private Prosecutions, Pub. Prosecution Serv. Can.,http://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/fpd/ch26 .html
(last modified Dec. 24, 2008). For Australia, see, for example, Director of Public Prosecutions Act 1983 s 10(2) (Austl.) (preserving private
prosecution); id. s 9(5) (giving the Director power to take over a prosecution for a Commonwealth offence that has been instituted by another
and either carry on or discontinue it); Annual Report 2014-15, Commonwealth Dir. Pub. Prosecutions (2015), https://www.cdpp.gov.au/2014
-15-annual-report-html-0 (reporting three private prosecutions in 2014-15, two of which were discontinued by the DPP); see also Director of
Public Prosecutions Act 1984 (Queensl.) s 10(c)(2) (Austl.) (giving DPP the power to "take over and conduct" criminal proceedings);
Director of Public Prosecutions Act 1986 (N.S.W.) s 9 (Austl.) (using similar language to Commonwealth DPP Act); Dir. of Pub.
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correlative rather than causal, but it nonetheless suggests a reason for why state justice systems took a different path from other
common-law jurisdictions and abolished private charging. Local white majorities had little need for a structural check on
prosecutors they elected, and they likely did not want a way for African-American citizens to challenge prosecutors and
independently pursue their interests in criminal courts. Prosecution redundancy would reduce the control of local majorities to
dictate enforcement policies, including preferences for selective underenforcement.
B. Judicial and Administrative Review of Decisions Not to Charge
A second structure that creates some redundant authority over decisions not to prosecute exposes those prosecutorial decisions
to review, either by courts or by supervising officials within an administrative hierarchy. As with private prosecution, this
mechanism is almost nonexistent among U.S. jurisdictions, with the significant exception of federal law. But this option has
gained ground elsewhere, in England and throughout E.U. countries. In all these contexts, its adoption responds to demands for
expanded victims' rights in the criminal process. This Section briefly surveys prominent examples of noncharging review in
federal law and Europe, then considers why state justice systems uniformly reject it.
[*874]
1. Oversight of Declination Decisions in Europe
Pursuant to an E.U. Directive, 100 twenty-five of the twenty-eight member states of the European Union grant crime victims
formal rights to seek review of decisions not to file criminal charges based on their complaints. 101 The details of these review
procedures vary. Some authorize judicial review of prosecutors' decisions; most jurisdictions, including Scotland and France,
provide at least a means for review by independent officials within the prosecution agency, perhaps with an additional
possibility for judicial review. 102 Although E.U. nations with common law-based legal systems, such as Ireland, Northern
Ireland, 103 and England, have adopted versions of this practice, the [*875] practice is more established in civil law
jurisdictions, likely because it is consistent with the longstanding duty in some civil law countries of mandatory prosecution.
104
Prosecutions Vict., Annual Report 14-15, at 86,http://www.opp.vic.gov.au/getattachment/8bc2fefc-8715-4516-9fb8-
57ea3e4b6342/OPP_Annual_Report_14_15_Full_web .aspx (noting that pursuant to discretion granted under § 22(b)(ii), the DPP took over
and dismissed one private prosecution instituted for an "improper purpose"). Regarding New Zealand, see Criminal Disclosure Act 2008
(N.Z.); Criminal Procedure Act 2011 (N.Z.); Crown Law, Solicitor-General's Prosecution Guidelines 4 (2013), http://www
.crownlaw.govt.nz/assets/Uploads/Prosecution-Guidelines/prosecution-guidelines-2013.pdf. Scotland is much more restrictive. See Criminal
Procedure (Scotland) Act 1975, c. 21, § 310A (Scot.) (stating in a provision added in 1996 that "except where any enactment otherwise
expressly provides, all prosecutions under this Part of this Act shall be brought at the instance of the procurator fiscal"); Frazer McCallum,
Scottish Parliament Info. Ctr., The Scottish Criminal Justice System: The Public Prosecution System 2 (2016), http://www
.parliament.scot/ResearchBriefingsAndFactsheets/S5/SB_16-47_The_
Scottish_Criminal_Justice_System_The_Public_Prosecution_System.pdf ("Prosecutions by private individuals are possible in some
circumstances, but are very rare."). Before 1995, judicial approval was granted for only two private prosecutions in Scotland in the twentieth
century. See Woman Loses Attempt to Bring Private Prosecution. Judges Reject Move on Rape Case, Herald Scot. (June 1, 1995),
http://www.heraldscotland.com/sport /spl/aberdeen/woman-loses -attempt-to-bring-private-prosecution-judges-reject-move-on-rape-case-1
.677607.
72
See Challenging the Decision Not to Prosecute, Eur. Union Agency for Fundamental Rts. (2014) [hereinafter FRA Report],
http://fra.europa.eu/en/publications-and-resources/data-and-maps/comparative-data/victims-support -services/prosecution (summarizing
policies of EU nations). This source arguably overstates private-prosecution jurisdictions by characterizing "private prosecution" broadly to
include states, such as France, in which victims can initiate petty offense charges and inquiries by investigating judges but may pursue only
civil actions without public prosecutors. See Country Studies for the Project "Victim Support Services in the EU: An Overview and
Assessment of Victims' Rights in Practice,' Eur. Union Agency for Fundamental Rts. (Feb. 2016), http://fra.europa.eu/en/countrydata/2016/country-studies-project-victim-support
-services-eu-overview-and-assessment-victims. For separate developments in the Council
of Europe, including standards for victim assistance and procedural rights to be informed about and participate in criminal proceedings, and
for a victim's right to review decisions not to prosecute, see Comm. of Ministers, Council of Eur., Recommendation Rec(2006)8 of the
Committee of Ministers to Member States on Assistance to Crime Victims (2006); Comm. of Ministers, Council of Eur., Recommendation
No. R (87) 4 of the Committee of Ministers to Member States Concerning the Simplification of Criminal Justice (1987); Comm. of Ministers,
Council of Eur., Recommendation No. R (87) 4 of the Committee of Ministers to Member States on the Protection of Workers in the Event of
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The mandatory prosecution duty, known as the "legality principle," is itself a safeguard against selective underenforcement due
to bias or favoritism. It is primarily an anti-discrimination injunction, intended to ensure that prosecutors treat like cases alike,
rather than a mandate to ensure public safety and order through full enforcement. 105 Administrative and judicial enforceability
of that duty is intended to ensure its effectiveness.
2. Oversight of Declination Decisions in England and Wales
The United Kingdom was an E.U. member state when the victim's right Directive was issued, 106 and its largest criminal
[*876] justice system - the combined jurisdictions of England and Wales - provides several grounds on which victims or other
aggrieved parties may obtain both administrative and judicial review of non-prosecution decisions. Yet the reasons for this
relate foremost to public rather than private interests: "a decision not to prosecute, especially in circumstances where it is
believed or asserted that the decision is or may be erroneous, can affect public confidence in the integrity and competence of
the criminal justice system." 107
In line with other E.U. member states, English victims can seek administrative review within the Crown Prosecution Service.
The process appears to be meaningful; in recent years, between seven and thirteen percent of prosecution decisions challenged
in this way have been reversed. 108 Moreover, noncharging decisions are also subject to judicial review - a policy rarely seen
in other common law jurisdictions. 109 The standard is deferential, but English courts do periodically overturn non-prosecution
decisions after evaluating them against written standards in the Code for Crown Prosecutors and other guidelines. 110 English
courts have disapproved of decisions not to prosecute upon finding they were based on an unlawful policy 111 or were found to
be [*877] "perverse" under a general reasonableness standard. 112 And in particular contrast to U.S. law with regard to lethal
force by police, English judges give special scrutiny to cases that arise from deaths in state custody, which by their nature raise
the specter of prosecutorial favoritism toward fellow law enforcement officials. 113
Employers' Insolvency (1987); Comm. of Ministers, Council of Eur., Recommendation No. R (85) 11 of the Committee of Ministers to
Members States on the Position of the Victim in the Framework of Criminal Law and Procedure (1985). For analysis of Directive 2012/29 as
well as Council of Europe recommendations, see Buczma, supra note 61, at 242-48. In Germany, victims can initiate a private prosecution for
certain minor offenses, and for more serious offenses may take a formal role as accessory prosecutors with rights to participate in proceedings
and to be heard before charges are dismissed. See Strafprozessordnung [StPO] [Code of Criminal Procedure], §§374-94, translation at
https://www.gesetze-im-internet.de/englisch_ stpo/englisch_stpo.html (describing rights of privateklage); id. §§153, 395-402 (describing
rights of nebenklager); see also id.§§403-406c (describing compensation); id. § 172 (describing victim's right to seek court order to compel
public prosecution); Michael Bohlander, Principles of German Criminal Procedure 25, 64 (2012).
73
This describes, for example, the German system that allows private parties to act as accessory prosecutors alongside public prosecutors.
See Strafprozessordnung [StPO] [Code of Criminal Procedure],§§153, 395-402 (describing rights of nebenklager).
74
See, e.g., Commonwealth Dir. of Pub. Prosecutions, supra note 71 (reporting three private prosecutions in federal courts in 2014-15).
75
By the end of the nineteenth century, state and federal justice systems were firmly committed to the principle that prosecution is an
exclusive power of public officials in which private victims have no role or standing. See Malley v. Lane, 115 A. 674, 676 (Conn. 1921); cf.
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) ("[A] citizen lacks standing to contest the policies of the prosecuting authority when he
himself is neither prosecuted nor threatened with prosecution… . In American jurisprudence at least, a private citizen lacks a judicially
cognizable interest in the prosecution or nonprosecution of another.").
76
See Manikis, supra note 66.
77
See Jacoby, supra note 70, at 5-7; Jack M. Kress, Progress and Prosecution, 423 Annals Am. Acad. Pol. & Soc. Sci. 99, 100 (1976); Allen
Steinberg, From Private Prosecution to Plea Bargaining: Criminal Prosecution, the District Attorney, and American Legal History, 30 Crime
& Delinq. 568, 571-72 (1984) (finding that private prosecutions predominated in the colonies). In 1704, Connecticut established what was
probably the first public prosecutor's office. See Jacoby, supra note 70, at 17; Kress, supra, at 103. When Blackstone described criminal law
as predominantly directed at public wrongs, he did so in the context of a late eighteenth century justice system in which private prosecutions
were common. See 4 William Blackstone, Commentaries on the Laws of England: Book the Fourth 5-6 (1795).
78
See Jacoby, supra note 70, at 23 (concluding that after 1789 "for the first half-century at least" the public prosecutor was "clearly a minor
actor in the court's structure" with a more judicial than executive role); Stephanie A.J. Dangel, Note, Is Prosecution a Core Executive
Function? Morrison v. Olson and the Framers' Intent, 99 Yale L.J. 1069, 1073 (1990) ("First, colonial attorneys general and district attorneys
performed non-prosecutorial tasks … ." ); see also Steinberg, supra note 77, at 577 (noting public prosecutor's duties included responsibility
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[*878]
3. Federal Oversight of Declination Decisions
In the United States, only the federal justice system provides for a process of administrative review somewhat comparable to
those in E.U. member states. Federal law grants victims a right to seek review of prosecutors' decisions within the Department
of Justice hierarchy, although it also explicitly bars judicial review of Justice Department decisions in this process. 114
Although decision makers in an internal review process have less institutional independence from those they review than do
judges engaged in judicial review, they also have a comparative advantage in institutional expertise, which could translate into
less deference to, and more meaningful oversight of, front-line prosecutors.
In addition, federal law guarantees victims "the reasonable right to confer with the attorney for the Government in the case."
115 The Department of Justice interprets this not to create a right to confer before charges are filed, reasoning that no "case"
exists until charges are filed. 116 Some lower courts have interpreted the statute differently, however, and concluded that it
[*879] creates an enforceable right for victims to confer with prosecutors before, and about, the charging decision. One held
that prosecutors cannot enter a non-prosecution agreement with a suspect until they confer with victims, and that if they fail to
do so the court can order prosecutors to re-open the non-prosecution agreement. 117 A few other lower federal courts have
reached similar conclusions, 118 although at least two have opposing conclusions. 119
Even in its stronger form, this is a limited entitlement, in effect, to an opportunity to try to influence charging decisions. Even
the most aggressive federal courts on this point do not examine prosecutors' good faith during consultations or their reasons for
disagreeing with victims. In sum, neither the consultation right nor the right to review by Justice Department supervisors
infringes federal prosecutors' monopoly power over charging from judicial oversight.
for the court calendar). England had no full-scale prosecution agency until the creation of the Crown Prosecution Service in the Prosecution
of Offences Act 1985. See Prosecution of Offences Act 1985, c. 23. The Director of Public Prosecutions office was established in 1879, but it
supplemented rather than displaced private prosecution. See Glanville Williams, The Power to Prosecute, Crim. L. Rev. 596, 601-03 (1955)
(noting 1879 creation of Director of Public Prosecutions and describing police as de facto public prosecutors).
79
See Parrillo, supra note 58.
80
Professional police forces did not arise until the 1850s, so victims investigated crimes and arrested offenders. See Peggy M. Tobolowsky,
Victim Participation in the Criminal Justice Process: Fifteen Years After the President's Task Force on Victims of Crime, 25 New Eng. J.
Crim. & Civ. Confinement 21, 25 (1999) (explaining that, to arrest offenders, victims could enlist the "aid of the local watchman, justice of
the peace, or constable for whose assistance the victim paid").
81
See, e.g., Mike McConville & Chester Mirsky, Jury Trials and Plea Bargaining: A True History 25-42 (2005) (describing early systems in
New York of judicial or gubernatorial appointment of prosecutors, until the office first became elective in 1847); Allen Steinberg, The
Transformation of Criminal Justice: Philadelphia, 1800-1880, at 152-58 (1989) (stating that Philadelphia first elected its district attorney in
1850). Prosecutors as well as judges became elected positions in many states as part of a wave of state constitutional reform in the midnineteenth
century. See, e.g., Ind. Const. art. 7, § 11 (1851); Md. Const. art. 5 (1851); see also id. art. 3 (forbidding creation of state attorney
general office); Mich. Const. arts. 8, 10 (1850); N.Y. Const. art. 10 (1846); N.C. Const. art. 4, § 29 (1868); Va. Const. art. 6,§§6, 8, 30
(1851).
82
See Jacoby, supra note 70, at 6 (arguing that American prosecutors evolved from weak to strong figures largely because they were
popularly elected and tied to local government organization). Public and private prosecutors coexisted for a few decades in some places. See
Cantrell v. Commonwealth, 329 S.E.2d 22, 25 (Va. 1985) (describing the history of private prosecution in Virginia); State v. Stein, 30 S.C.L.
(1 Rich.) 189, 190 (S.C. 1845) (affirming that private individuals may file criminal or civil actions for the same offense but must elect the
form before trial); Corley v. Williams, 17 S.C.L. (1 Bail.) 588, 588-89 (S.C. 1830) (providing an example of private prosecution).
Pennsylvania and New York relied heavily on private prosecutors for criminal law enforcement before 1850. See Stewart v. Sonneborn, 98
U.S. 187, 198 (1879) (Bradley, J., dissenting) ("Every man in the community, if he has probable cause for prosecuting another, has a perfect
right, by law, to institute such prosecution, subject only, in the case of private prosecutions, to the penalty of paying the costs if he fails in his
suit."); McConville & Mirsky, supra note 81 (describing New York courts with private prosecutors and, prior to 1847, judicial or
gubernatorial appointments of public prosecutors); Steinberg, supra note 81, at 24-69, 152-57 (describing private prosecutions, screened by
aldermen acting as magistrates, and creation of elected district attorney's office in 1852).
83
Robert M. Ireland, Privately Funded Prosecution of Crime in the Nineteenth-Century United States, 39 Am. J. Legal Hist. 43, 44-45
(1995) (recounting numerous comments by state supreme courts on the low quality and inadequate funding of public prosecutor offices).
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[*880]
4. Oversight of Declination Decisions in State Justice Systems
State justice systems do not go as far as the federal system does, much less provide the kind of oversight or victim recourse
that European systems now offer. And this is so despite the fact that all states have adopted substantial victims' bills of rights,
nearly all of which include rights for victims to consult with prosecutors. Most make clear that the consultation right attaches
only after the prosecutor decides to file charges. 120 Rights of administrative review are rare. 121 One reason for that is surely
structural. The U.S. Department of Justice is a hierarchically organized agency within which all federal prosecutors operate, a
structure that enables supervisory and quasi-independent review within the agency. But few states follow that model. Instead,
prosecutors in most states are locally elected and operate [*881] autonomously from state justice departments or attorneys
general, which generally exercise little, if any, oversight. 122 Administrative review of state prosecutors' charging decisions is
simply not feasible without major reorganization of state justice systems.
That structural barrier probably explains why state prosecutors' decisions are functionally immune to administrative oversight,
but the lack of judicial oversight has a different origin. In accord with common law tradition, state and federal courts have
never meaningfully reviewed public prosecutors' noncharging decisions. 123 In particular, they have unambiguously rejected
victims' claims of standing to challenge those decisions. 124 A few [*882] limited exceptions prove the rule. In cases of
private criminal complaints filed by alleged victims, Colorado, Michigan, Nebraska, and Pennsylvania authorize judges to
review public prosecutors' decisions not to charge. 125 Even when statutes grant courts the power to review (or even mandate
review) of charging and dismissal decisions, state judges consistently have refused to scrutinize the merits of prosecutors'
judgments. Many states have replaced the common law rule that gave prosecutors complete discretion to nolle prosequi (or
dismiss) any criminal charge with statutes that require judges to confirm that non-prosecution is in the interest of justice. 126
Yet courts uniformly refuse to engage in meaningful review, inferring instead that those statutes require deference to
prosecutors. 127
84
See Erikson v. Pawnee Cty. Bd. of Cty. Comm'rs, 263 F.3d 1151, 1154 (10th Cir. 2001) (finding no due process violation because private
attorney assisting prosecution did not "control[] critical prosecutorial decisions"). The first states to prohibit privately funded prosecutors
even under supervision of public prosecutors were Massachusetts, Michigan, and Wisconsin. See Commonwealth v. Gibbs, 70 Mass. (4 Gray)
146, 147-48 (1855); Meister v. People, 31 Mich. 99, 104-06 (1875); Biemel v. State, 37 N.W. 244, 248-49 (Wis. 1888). See also Ireland,
supra note 83, at 49 (listing fifteen states that still approved privately funded prosecutors in 1900). Other states abolished this practice more
recently. See State ex rel. Wild v. Otis, 257 N.W.2d 361, 365 (Minn. 1977) (holding that party has no right of private prosecution); State v.
Harrington, 534 S.W.2d 44, 48 (Mo. 1976) (holding that a right of private prosecution should not be permitted); People v. Calderone, 573
N.Y.S.2d 1005, 1007 (N.Y. City Crim. Ct. 1991) (concluding that under New York law private prosecutions by interested parties or their
attorneys present inherent conflicts of interest which violate defendants' due process rights); State v. Best, 186 S.E.2d 1, 4 (N.C. 1972) (noting
that a public prosecutor must be in charge of all prosecutions).
85
See, e.g., N.J. Ct. R. 3:23-9 (permitting private prosecutor with approval of the public prosecutor and court); N.J. Ct. R. 7:8-7(b)
(permitting private prosecutor for cross-complaints with court approval); State v. Harton, 296 S.E.2d 112, 113 (Ga. 1982) (private party not
allowed to prosecute without state approval); State v. Moose, 313 S.E.2d 507, 512-13 (N.C. 1984) (stating that private attorneys may assist
public solicitors where public solicitors retain control and management of prosecution); Cantrell, 329 S.E.2d at 25 (stating that private
attorneys may assist commonwealth attorneys with the permission of the prosecutor and the court); 63C Am. Jur. 2d Prosecuting Attorneys §
12 (2018) (citing authority in some states that private attorneys may assist public prosecutors). For a state statute that apparently gives the
"prosecuting witness" a right to pay a private attorney to assist the public prosecutor without the latter's consent, see Kan. Stat. Ann. § 19-717
(2017); see also John D. Bessler, The Public Interest and the Unconstitutionality of Private Prosecutors, 47 Ark. L. Rev. 511, 529, nn.71-72
(1994) (citing cases in majority of states allowing private prosecutors to assist in public prosecutions). Bessler identifies three states that
"allow private prosecutors to participate without the consent or supervision of the district attorney," but in all three states, the public
prosecutor initiated and litigated the criminal charge, while the private prosecutor assisted in the litigation as counsel to a victim. Id. at 529,
n.71.
86
234 Pa. Code § 506 (2001); In re Private Criminal Complaints of Rafferty, 969 A.2d 578, 582 (Pa. 2009) (discussing the ability of a
prosecutor to approve or disapprove of private complaints). Judges may authorize private counsel to take over as prosecutor upon finding that
a district attorney has "neglected or refuseed to prosecute" a properly grounded charge. See 16 Pa. Stat. and Cons. Stat. Ann. § 1409 (West
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[*883] This is a stark contrast with European justice systems, but U.S. jurisdictions are not alone in shielding prosecution
decisions from judicial oversight. Aside from England and Wales, courts in other common law jurisdictions - notably Canada
and Australia - take roughly the same approach and defer to prosecutorial charging discretion. 128
5. Summary of Declination Oversight
Both private prosecution and review procedures provide a kind of redundancy that checks prosecutorial declination decisions,
and both can do so in service of public interests as well as victims' private interests. Both options have some capacity to
challenge prosecutorial judgments affected by political or personal biases, institutional allegiances (especially between police
and local politicians), or other illicit sources of favor or disfavor. As one commentator put it in the English context, private
prosecution authority recognizes that victims possess some capacity to be independent "assessors of the evidence as well as the
public interest." 129 Review procedures enable judges and supervisory [*884] officials to do much the same thing, without the
cost barriers for victims posed by private prosecutions. (Although it may well be that poorer victims are less likely even to
petition for review, especially if they lack legal counsel to press their review requests.)
Why, then, have U.S. jurisdictions so uniformly rejected both options? As noted, both racial politics and the power of common
law tradition are probable contributing reasons. 130 Another is the singular choice of most state justice systems to make
prosecutors locally elected officials, which does much to prevent kinds of over-and underenforcement disfavored by local
majorities. That, in turn, likely reduces pressure for reforms that would improve other safeguards against decisions not to
prosecute - especially decisions that cut against popular local preferences, which in many communities include rigorous
2016) (authorizing victims dissatisfied with public prosecutor to petition the court and granting courts the power to allow victim's attorney to
take over as private prosecutor).
87
See 12 R.I. Gen. Laws§§12-4-1, 12-4-2, 12-4-6, 12-12-1.3 (2017); Cronan ex rel. State v. Cronan, 774 A.2d 866, 871 (R.I. 2001)
(approving private misdemeanor prosecution for assault under state statutes).
88
See State v. Martineau, 808 A.2d 51, 54 (N.H. 2002); see also State by Tucker v. Gratta, 133 A.2d 482, 482 (N.H. 1957) (holding that state
prosecutors retain power to dismiss private criminal complaints).
89
See, e.g., N.C. Gen. Stat.§§15A-303, 304 (2016); Moose, 313 S.E.2d at 512-13 (requiring that the public prosecutor remain in continuous
control of the case). Scattered marginal remnants of private enforcement may remain elsewhere, such as an Oklahoma statute providing that
prosecutions for adultery (a felony) may be "commenced and carried on against either of the parties to the crime only by his or her own
husband or wife." Okla. Stat. tit. 21 § 871 (2017) ("Prosecution for adultery can be commenced and carried on against either of the parties to
the crime only by his or her own husband or wife as the case may be, or by the husband or wife of the other party to the crime.").
90
The Royal Commission on Criminal Procedure, 1981, Cmnd. 8092, P 7.47 (UK); see also Gouriet v. Union of Post Office Workers [1978]
AC (HL) 435 at 477 (Eng. and Wales) (private prosecutions are a "valuable constitutional safeguard against inertia or partiality on the part of
the authority"); cf. Manikis, supra note 66, at 67, 71 (describing review as a means to correct prosecution errors).
91
In re Hickson, 2000 PA Super 402, PP 22, 41; see also In re Piscanio, 344 A.2d 658, 660-61 (Pa. Super. Ct. 1975) ("The judge's
independent review of the complaint checks and balances the district attorney's decision and further hedges against possibility of error.").
92
United States v. Armstrong, 517 U.S. 456, 461-64 (1996).
93
Arguments for strengthening the doctrine to make claims easier to pursue are common. See, e.g., Richard H. McAdams, Race and
Selective Prosecution: Discovering the Pitfalls of Armstrong, 73 Chi.-Kent L. Rev. 605, 606 (1998) (discussing use of the equal protection
doctrine but challenging current precedent).
94
Grand juries remain a fixture in the federal system and in roughly half the states. See Sara Sun Beale et al., Grand Jury Law and Practice §
1:5 (2d ed. 2017) (describing grand jury status and rules in states and noting states that have partially or wholly abolished grand juries);
Andrew D. Leipold, Why Grand Juries Do Not (and Cannot) Protect the Accused, 80 Cornell L. Rev. 260, 274-75 (1995) (noting difficulty of
getting data on grand jury screening and offering reasons why grand juries rarely reject requests for indictments). To extend the comparison,
public officials (judges) have a long track record of doing the same task that trial and grand juries do. That available substitute did not lead to
calls for juries' abolition. Yet the availability of public prosecutors as replacements led to the U.S. jurisdictions to abolish private prosecutors.
DAVID SCHOEN
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prosecution of excessive police uses of force. Finally, another institution responds to some of the same underenforcement
problems that private prosecution and judicial review could address - redundant prosecution authority in a federal system.
C. Federalism Safeguards on Prosecutorial Discretion
The scope of the U.S. federal criminal code expanded vastly in the twentieth century, as did the federal government's
institutional capacity to enforce that code and its regulatory authority more generally. The result has been a distinctive form of
criminal justice federalism: federal enforcement authority wholly overlaps the territorial scope of state criminal law, and the
federal code substantially overlaps much of what is covered in state criminal codes. The resulting structure of redundant
federal-state authority has evolved into a means - unusual even among federal nation-states - to second-guess and effectively
trump state prosecutors' declination decisions without empowering courts or private parties.
No other nation built on a federal model incorporates nearly [*885] the same degree of redundancy between state and federal
justice systems. 131 The more common model of criminal justice federalism is found in Canada and Germany: each has a
single national criminal code that is administered by separate state-level prosecution agencies and court systems. 132 Other
federal states follow the U.S. model and have separate criminal codes, prosecution agencies, and court systems in each state as
well as for the federal government. Australia follows this model, but the scope and jurisdiction of Australian federal criminal
law is much more limited than is U.S. federal law; federal crimes are largely confined to offenses that implicate distinct federal
interests - it is probably closer to U.S. federal criminal law in 1910 than 2010. The result is that in Australia federal criminal
law enforcement overlaps much less with state criminal law. 133
The broad redundancy provided by U.S. federalism enables federal prosecutors to serve as checks on underenforcement by
state prosecutors, at least for some large and important categories [*886] of crime. In effect, federal prosecutors can review
the declination decisions of state prosecutors - as well as the adequacy and success of their prosecutions - and then decide
whether to file federal charges in cases that their state counterparts declined to pursue, charged too leniently, or in which they
failed to win a conviction or sufficiently harsh sanctions. (In theory state prosecutors conduct the same oversight over much of
95
See George Fisher, The Jury's Rise as Lie Detector, 107 Yale L.J. 575, 671-96 (1997) (discussing the impact of racial policies in post-Civil
War jury and court processes).
96
I am aware of no historical research on African American private prosecutors, and I have found no evidence of any in case law or general
accounts of private prosecutions.
97
See, e.g., Fisher, supra note 95, at 684 n.514 ("Denial to the freedman of the power to testify in court against the white man … strikes not
at a mere civil franchise, but at a natural right - the right of protecting life and property. When a white man may take a freedman's life or
property with impunity, if no other white men be present, the freedman has no security for either." (quoting The Progress of Reconstruction,
N.Y. Times, Oct. 3, 1865, at 4)).
98
When Southern states were compelled to grant African American citizens litigation rights, they imposed strict conditions, permitting
African Americans the right to testify only when the crime victim (or the opposing civil litigant) was African American. Id. at 684. Those
limitations likewise restricted African Americans' private prosecution authority, although in many places racial customs, backed by the
prospect of racial violence, was probably discouragement enough. See generally Douglas A. Blackmon, Slavery by Another Name: The Re-
Enslavement of Black Americans from the Civil War to World War II (2008) (discussing history of African Americans' distrust of America's
judicial system); Nicholas Lemann, Redemption: The Last Battle of the Civil War (2007) (exploring incidents after the Civil War and the
impact on politics during the Reconstruction Era).
99
Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality 49-51 (2004). Northern
states were not models of race-blind democracy. Connecticut voters in 1865 rejected a proposal to enfranchise African American citizens in
their state. Fisher, supra note 95, at 685.
100
See Council Directive 2012/29, art. 11, 2012 O.J. (L 315) 57 (EC) (EU), http://eur-lex.europa.eu/legalcontent/EN/TXT/?uri=CELEX:32012L0029
(requiring member states to give crime victims means to challenge non-prosecution decisions,
either through private prosecution or a right to review).
101
See FRA Report, supra note 72 (summarizing policies of EU member states and noting that only Cyprus and Malta provide victims
neither right).
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federal enforcement practice, but this is less common.) 134 State prosecutors' decisions, at least for certain categories of serious
wrongdoing, face de facto review by federal executive officials.
Or so the law for a century has permitted. The constitutional double jeopardy doctrine since at least 1922 has recognized the
"dual sovereignty" of state and federal governments. Notwithstanding the guarantee that no person shall "be subject for the
same offence to be twice put in jeopardy," the Double Jeopardy Clause has been understood not to preclude federal prosecutors'
power to charge a person who has previously been prosecuted by state officials for the same criminal conduct, and federal
prosecutions likewise do not limit subsequent state enforcement efforts. 135 By granting certiorari in United States v. Gamble
this term, 136 the U.S. Supreme Court is set to revisit this doctrine, which provides the foundation for the federalism-based
check on underenforcement.
Federal prosecutors do not attempt to keep an eye on all state prosecution decisions and practices, and federal criminal [*887]
law is not fully coextensive with state criminal law; significant gaps are discussed in the next Part. But the substantive
redundancy is considerable. For some areas of dual authority - such as drug crimes, fraud, child pornography, and human
trafficking - federal and state agencies often coordinate investigative efforts and divide up prosecution responsibilities. But
federal Justice Department policy to exercise oversight of state enforcement practices in certain categories of crime is
deliberate and formalized. Notable examples include state and local government corruption, excessive use of force and other
wrongdoing by police, and other criminal civil rights violations. 137 Especially in these areas, federal prosecutors assess
whether to file their own charges in cases in which their state counterparts declined to charge, charged too leniently, or in
which they failed to win appropriate convictions. Federal prosecution in the wake of state declination is hardly the norm - it
should not be, if state prosecutors decline cases for the right reasons 138 - but federal officials do remedy meaningful
enforcement gaps left by state prosecutors. 139
Functionally, this inter-governmental model of review resembles intra-agency administrative review with greater independence
between initial decision makers and subsequent reviewers. Oversight of state prosecutors rests with the policy [*888]
priorities of federal executive branch officials. The Justice Department has well-established written guidelines for much of this
oversight activity, although they are not formally binding. 140 Although the Justice Department bureaucracy has a stronger
102
On Scotland, see Victims and Witnesses (Scotland) Act 2014, (ASP 1) § 4 ("The Lord Advocate must make and publish rules about the
process for reviewing, on the request of a person who is or appears to be a victim in relation to an offence, a decision of the prosecutor not to
prosecute a person for the offence."); Crown Office & Procurator Fiscal Serv., Lord Advocate's Rules: Review of a Decision Not to Prosecute
- Section 4 of the Victims and Witnesses (Scotland) Act 2014, at 5 (2015),
http://www.copfs.gov.uk/images/Documents/Victims_and_Witnesses/Lord%20Avocates%20Rules%20-% 20June%2015%20v2.pdf. On
France, see Novokmet, supra note 70, at 101-02. In addition to judicial review, England also provides administrative review. See Dir. of Pub.
Prosecutions, Victims' Right to Review Guidance 6-9 (2016), https://www.cps.gov.uk/sites/default/files/documents/publications/vrr_
guidance_2016.pdf (noting that victims may seek administrative review of decisions not to prosecute, which are checked in a local CPS office
by a prosecutor who has not been involved with the case previously, then at the victim's request in a review by the Appeals and Review Unit);
Victims' Right to Review Scheme, Crown Prosecution Serv., https://www.cps. gov.uk/legal-guidance/victims -right-review-scheme (last
updated July 2016). Decisions are reviewed as questions of law - that is, whether they are correct as a matter of law, even if reasonable.R v.
Killick [2011] EWCA (Crim) 1608, [2012] 1 Crim. App. 10 [48] (recognizing victim right to review under EU Directive art. 10, and noting
original prosecution decision was reasonable but wrong); see also Keir Starmer, Human Rights, Victims and the Prosecution of Crime in the
21st Century, Crim. L. Rev. 777, 783-84 (2014) (describing aims of review policy).
103
See Carlin v. Dir. of Pub. Prosecutions [2010] IESC 14, 3 IR 547, at P 12 (Ir.) ("If … it can be demonstrated that [the DPP] reaches a
decision mala fide or influenced by an improper motive or improper policy then his decision would be reviewable by a court. To that extent I
reject the contention again made on behalf of this respondent that his decisions were not as a matter of public policy ever reviewable by a
court." (quoting State (McCormack) v. Curran, [1987] ILRM 225, 237 (Ir.))); Office of the Dir. of Pub. Prosecutions, The Role of the DPP 16
(2015), https://www.dppireland.ie/filestore/documents/victims_ directive_publications/ENGLISH_-_Role_of_the_DPP.pdf (noting crime
victims, among others, can seek DPP review of prosecutors' decisions). On Northern Ireland, see Pub. Prosecution Serv. for N. Ir., Victims of
Crime: Requesting a Review of a Decision Not to Prosecute 2-4 (2017),
https://www.ppsni.gov.uk/Branches/PPSNI/PPSNI/Files/Documents/Rquests%20For%
20Review/Victims%20of%20Crime%20-
%20Requesting%20a%20Review% 20of%20a%20Decision%20not%20to%20Prosecute%20(October%202017 ).pdf.
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institutional culture of professionalism than many state prosecutor offices, departmental policies and priorities can change
substantially with presidential administrations - as they have recently. 141 Nonetheless, this federalism-based model of
prosecutorial oversight has an advantage shared by the administrative review schemes within single prosecution agencies. In
both settings, those with review power are prosecutors who should have greater institutional competence and legitimacy to
second-guess other prosecutors' charging decisions, and consequently less inclination than courts to defer to prosecutorial
judgments.
This federalist model of enforcement redundancy did not evolve from earlier common law institutional arrangements, like
private prosecution, nor from the modern victims' rights movement, like judicial and administrative review of decisions not to
prosecute. Federal criminal law enforcement expanded for several reasons, but behind many of those reasons is a common
purpose: to remedy glaring patterns of underenforcement by the states. For example, federal law and institutional capacity
(such as the advent of the Federal Bureau of Investigation) expanded in response to states' inability to confront adequately the
rise of interstate violence and drug crimes (as well as, for a time, prohibition on alcohol manufacture and distribution). 142
Federal law [*889] took on the primary role in combatting local government corruption - including police corruption and
excessive uses of force - which local prosecution agencies often lacked the ability, or political independence, to confront. 143
And federal law has long attempted to fill the gap when racially biased local police, prosecutors, and juries declined to arrest,
prosecute, or convict suspects - especially white ones - who victimized black citizens. 144 In sum, the redundant enforcement
104
Strafprozebetaordnung [StPO] [Code of Criminal Procedure], §§152, 160, 170, translation at https://www.gesetze-iminternet.de/englisch_
stpo/englisch_stpo.html (Ger.) (defining prosecution duty to investigate suspected crime and indict when evidence is
sufficient); id. §§171-75 (providing for judicial orders to prosecute, including victim's right to seek order compelling prosecution);
Bohlander, supra note 72, at 25-27, 67-71, 103-04 (describing German procedures to compel prosecutions under statutory legality principle);
Novokmet, supra note 70, at 92-93. Failures to charge when required to do so can expose a prosecutor to discipline or even criminal liability.
See Strafgesetzbuch [StGB] [Penal Code], § 339, translation at https://www .gesetze-im-internet.de/englisch_stgb/englisch_stgb.html (Ger.)
(establishing that rechtsbeugung, or perversion of justice, is punishable by one to five years in prison); id.§§258, 258a (establishing
punishment for police or prosecutor's failure to investigate or prosecute colorable offenses).
105
See Shawn Marie Boyne, The German Prosecution Service: Guardians of the Law? 8-10, 91-92 (2014) (quoting Hans-Heinrich Jescheck,
The Discretionary Powers of the Prosecuting Attorney in West Germany, 18 Am. J. Comp. L. 508, 511 (1970)); Markus D. Dubber, Criminal
Process in the Dual Penal State: A Comparative-Historical Analysis, in Oxford Handbook of Criminal Process, supra note 60; see also Klaus
Sessar, Prosecutorial Discretion in Germany, in The Prosecutor 255, 272-73 (William F. McDonald ed., 1979). For the German example of
this principle, see Strafprozebetaordnung [StPO] [Code of Criminal Procedure],§§152, 160, 170, translation at https://www.gesetze-iminternet.de/englisch_stpo/englisch_stpo.html
(Ger.) (defining prosecution duty to investigate suspected crime and indict when evidence is
sufficient).
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authority developed as part of the modern model U.S. federalism has much in common, in functional terms, with private
prosecution and review of prosecutorial declination decisions. All are mechanisms to guard against unjustified nonenforcement,
or underenforcement, by jurisdictions' primary prosecution agencies. The next Part examines the relative strengths of these
alternatives.
III. PROS AND CONS OF FEDERALISM-BASED ENFORCEMENT REDUNDANCY
A. Comparative Limits of Enforcement-Oversight Strategies
Each of the institutional approaches to reducing underenforcement of criminal law by public prosecutors has comparative
strengths and weaknesses. All three share the common virtue of being a means to reduce instances of bias, favoritism, or other
misjudgments that result in unjustified nonenforcement. All three enable outside reevaluation of declination decisions. Private
prosecution empowers motivated private parties - crime victims - to initiate the challenge to a public prosecutor's decision not
to charge by filing charges themselves. The same is true in jurisdictions that subject declination decisions to formal
administrative or judicial review; victims trigger that process by petitioning for an independent evaluation. Both of those
practices harness the motivations of interested private parties to, in effect, screen which declination decisions should be subject
to reassessment, although private prosecution poses a significant cost barrier for victims who want to take advantage of it. At
the same time, both of these practices give public officials the final [*890] word on whether a prosecution (public or private)
will proceed.
The federalism route to prosecutorial oversight, by contrast, gives private parties no formal role, although victims can file
complaints and lobby federal prosecutors just as they can with local police and prosecutors for any alleged crime. Put
differently, federal prosecution as check on state underenforcement rests more directly on the initiative, diligence, and
judgment of federal prosecutors than private victims. In some areas, federal commitment is significant. 145 But it also varies
with the policy priorities of presidential administrations, which can vary considerably in their commitment to fighting certain
kinds of crimes and to federal oversight of state criminal justice administration. 146
106
The U.K. is scheduled to leave the European Union in 2019. See Alex Hunt & Brian Wheeler, Brexit: All You Need to Know About the
U.K. Leaving the E.U., BBC (Sept. 13, 2018), https ://www.bbc.co.uk/news/uk-politics-32810887.
107
R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [20] (Eng. and Wales).
108
See Victims' Right to Review Data, CPS, http://www.cps.gov.uk/victims_ witnesses/victims_right_to_review/vrr_data/index.html (last
updated June 2017) (noting that 6.8% of appeals (137 out of 1988) succeeded in 2016-17; thirteen percent of appeals (210 out of 1674)
succeeded in 2014-15). The percentage of prosecution decisions challenged in this way has been well below one percent - 0.13% in 2016-17,
and 0.17% in 2014-15 - which suggests the administrative burden is manageable. See id.
109
See Balderstone v. R (1983), 23 Man. R. (2d) 125, at para. 28 (Can. Man. C.A.) ("If a judge should attempt to review the actions or
conduct of the Attorney-General - barring flagrant impropriety - he could be falling into a field which is not his and interfering with the
administrative and accusatorial function of the Attorney-General or his officers. That a judge must not do.").
110
Decisions to discontinue a prosecution after charging get similar scrutiny. For an example of a court finding wrongful a decision to
discontinue prosecution, see R (FB) v. DPP [2009] EWHC (Admin.) 106, [2009] Crim. App. 38, at P 70 (Eng. and Wales). On prosecutor's
nolle pros authority, see R v. B(F) [2010] EWCA (Crim.) 1857, [2010] 2 Crim. App. 35, at P13 (Eng.); R (Gujra) v. CPS [2013] AC 484, at
484 (Eng. and Wales). See also R v. DPP [1995] (QB) 1 Crim. App. 136, at 145 (Eng.).
111
For leading decisions on the issue, see R v. DPP [2001] QB 330, at 344-48 (Eng. and Wales); R (Da Silva) v. DPP [2006] EWHC
(Admin) 3204 [24] (Eng. and Wales); Sharma v. Brown-Antoine [2006] UKPC 57, [2007] 1 WLR 780, at 792-96 (appeal taken from Trin.
And Tobogo); Marshall v. DPP [2007] UKPC 4 (appeal taken from Jam.); R v. Metropolitan Police Commr. [1968] 2 QB 118, at 119-20
(Eng.); R v. DPP (Kebiline) [2000] 2 AC 326, at P 2 (Eng.). England created its prosecution agency, the Crown Prosecution Service, only in
1985. See Prosecution Offences Act 1985, c. 23, § 1 (Eng. and Wales); Andrew Ashworth & Mike Redmayne, The Criminal Process 222-23
(4th ed. 2010). The Director of Public Prosecutions was created in 1879 but did not handle most prosecutions until the creation of the Crown
Prosecution Service. In the intervening century, police came to dominate filing of criminal charges, supplemented by private prosecutions, a
system that eventually was viewed as providing insufficient supervision of charging decisions by police. See Williams, supra note 78.
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But that distinction has an upside: private prosecution and judicial review do not work in cases in which there is no direct
victim - or in which private parties do not realize they have been victimized, as in some cases of large-scale corporate or
government fraud, or in some cases of child pornography. 147 Federal prosecutors, however, take on just such cases as a core
part of their enforcement agenda. 148 On the other hand, federal oversight is limited in other important respects: federal
criminal enforcement authority is not fully coextensive with state criminal law; notably, for example, it provides effectively no
enforcement redundancy for ordinary domestic violence, rape, and other sexual assault offenses. 149
[*891]
B. Three Kinds of Offenses: Corruption, Police Violence, Sexual Assault
Consider the efficacy for these oversight options with respect three types of offenses: local fraud or corruption, excessive use
of force and other wrongdoing by local law enforcement officers, and sexual assaults. These three classes of offenses have in
common that they have proven to be especially vulnerable to underenforcement. At the same time, the differences in how U.S.
criminal justice institutions have responded to underenforcement in each area highlight the efficacy and limits of the
federalism-based enforcement redundancy compared to the alternatives - both those U.S. jurisdictions reject (private
prosecution and judicial review) and a fourth, unique strategy they embrace: politically accountable prosecutors.
1. Public Corruption
Corrupt conduct by government officials is a category of wrongdoing especially likely to suffer from underenforcement, for
obvious reasons: we depend on one set of public officials, prosecutors and investigative agents, to stop wrongdoing by other
public officials - as well as by colleagues within their own ranks. Professional and even personal relationships often exist
between these groups of public officials. Even when the boundaries between lawful and unlawful conduct are clear and law
112
R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (summarizing three grounds for review and citing R v. DPP
[1995] (QB) 1 Crim. App. 136 (Eng.)); R (Guest) v. DPP [2009] EWHC (Admin.) 594, [2009] 2 Crim. App. 26, at P 34 (Eng. and Wales); R
v. General Council of the Bar [1990] 3 All ER 137 (QB), at 137-38 (Eng. and Wales). For an overview, see Ashworth & Redmayne, supra
note 111; Christopher Hilson, Discretion to Prosecute and Judicial Review, Crim. L. Rev. 739 (1993) (examining case law regarding
prosecution decisions and subsequent judicial review); Appeals: Judicial Review of Prosecutorial Decisions, CPS,
https://www.cps.gov.uk/legal-guidance/appeals -judicial-review-prosecutorial-decisions (last updated May 21, 2009). The European
Convention on Human Rights may impose affirmative obligations on member states that certain instances require prosecutions, or that more
generally require a state to maintain a criminal justice system that provides sufficient protection to citizens. English courts found that their
established standards of review of noncharging decisions, based in domestic law, have been held sufficient to meet any such obligation. See R
(FB) v. DPP [2009] EWHC (Admin.) 106,[2009] Crim. App. 38, at P 64 (Eng. and Wales) (discussing state obligations under Articles 2 and
3); see also R v. Killick [2011] EWCA (Crim.) 1608, [2012] 1 Crim. App. 10 at [48] (confirming victims' right to review). Judges may
require disclosure of internal prosecution documents, but they assess the lawfulness of nonprosecution without examining the underlying
evidence. See R (Da Silva) v. DPP [2006] EWHC (Admin) 3204 [24] (Eng. and Wales) (noting use of redacted investigative report and case
notes from CPS but disavowing evaluation of evidence).
113
See R v. DPP [2001] QB 330 at 337 (Eng. and Wales); R v. Metro. Police Commr. [1958] 2 QB 118, at 123-25 (Eng. and Wales);
Ashworth & Redmayne, supra note 111, at 221-22. Decisions by U.S. courts give no special solicitude to instances of nonprosecution in the
wake of injuries or deaths caused by prison guards or other law enforcement officials. See, e.g., Leeke v. Timmerman, 454 U.S. 84, 85-87
(1981) (rejecting state prison inmates' federal civil claim alleging bad faith by state officials to block issuance of arrest warrants against
guards on allegations of unnecessary beatings during prison uprising); Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83
(2d Cir. 1973) (rejecting request, on behalf of inmates injured or killed by state prison guards in the wake of a prison riot, that federal courts
compel state and federal prosecutors to charge guards, reaffirming that prosecutorial discretion is immune to judicial review). To facilitate
review, English prosecutors in some circumstances must provide public reasons for choosing not to file charges. See Jordan v. United
Kingdom (No. 2) [2003] 37 Eur. Ct. H.R. 52 PP 82-86, 122-23, 142-45 (holding that under article 2 of the European Convention on Human
Rights prosecutors should give reasons explaining a decision not to bring criminal charges after an investigation into a death caused by police
shootings); see also R v. DPP [2001] QB 330, at 347 (Lord Bingham, CJ) (Eng. and Wales) ("In the absence of compelling grounds for not
giving reasons, we would expect the Director to give reasons in such a case [of non-prosecution]: to meet the reasonable expectation of
interested parties that either a prosecution will follow or a reasonable explanation for not prosecuting be given … ."); EU Council Directive
2012/29, supra note 100, art. 6, at 67 (requiring explanations to victims that can be subjected to review). Irish victim rights laws that took
effect in 2015 now require prosecutors to provide reasons to victims for declining to prosecute. See Mark Hilliard, New Laws on Rights of
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103 Minn. L. Rev. 844, *891
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enforcement can learn of misconduct done mostly in secret, political or personal incentives for enforcement officials that
discourage zealous enforcement can exist for enforcement officials in the same jurisdiction - perhaps enmeshed in the same
political networks. In short, underenforcement in this realm follows more from favoritism toward offenders than the biases
against victim groups or types of offenses.
"Corruption" is a notoriously hard concept to define, 150 but that difficulty is actually somewhat useful for present purposes.
Some of what constitutes public corruption is relatively clearly [*892] defined in positive law. Easy cases involve
straightforward property theft or embezzlement, quid pro quo bribery, and extortion. 151 Statutes also make clear at least some
cases of illegal gratuities and breaches of regulations that govern activities such as campaign finance. 152 More ambiguous or
marginal cases of alleged corruption, however, illustrate the federal government's ambitious commitment to enforcing broad
interpretations of federal anti-corruption laws to conduct of state and local officials. That enforcement track record
demonstrates the strong commitment to enforcement redundancy in this area.
States have their own regulatory strategies to address government corruption, although independent assessments do not judge
them to be particularly successful. 153 The federal government seems to share that view. The Justice Department created a
Public Integrity Section within the Criminal Division in 1976, 154 and in the four decades since, federal prosecutors have
[*893] aggressively prosecuted conduct of state and local officials that it determines breaches federal anti-corruption statutes.
155 For the past two decades, federal anti-corruption prosecutions of state and local officials typically average 350-400 per year.
156 Combatting "public corruption" is a top priority for the Federal Bureau of Investigation, on par with combating threats of
terrorism, foreign espionage, and cyber-warfare. 157 And many of these prosecutions targeted wrongdoing far removed from
property theft or quid pro quo bribery. 158 They extend to conduct involving undue influence, breaches of fiduciary duty, or
failure to provide citizens with "honest services" 159 - wrongdoing for which the public harm is sometimes hard to identify.
160
[*894] By some accounts, including the U.S. Supreme Court's on occasion, 161 this enforcement agenda has been overly
aggressive. 162 But Congress has generally encouraged far-reaching federal enforcement, notably by expanding the scope of
federal anti-corruption law in response to narrow judicial interpretation. 163 And the key point here is that the federal executive
Crime Victims are Criticized, Irish Times (Nov. 16, 2015), http://www.irishtimes.com/news/crime-and-law/new-laws-on-rights-of -crimevictims-are-criticised-1.2431095.
By contrast, seeSinger v. United States, 380 U.S. 24, 34-37 (1965) (holding that due to judicial "confidence
in the integrity of the federal prosecutor," U.S. attorneys need not give reasons for refusing to consent to defendant's waiver of jury trial). For
rare examples of U.S. rules requiring prosecutors to give reasons for not charging, see Colo. Rev. Stat. § 16-5-209 (2014) (requiring
prosecutor's reasons upon private complaint objecting to non-prosecution); Pa. R. Crim. P. 506.
114
Review within the U.S. Justice Department hierarchy is mandated by 18 U.S.C. § 3771(f) (2016); see also id. § 3771(f)(2)(D) (protecting
Justice Department decisions from judicial review).
115
See 18 U.S.C. § 3771(a)(5).
116
The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004, 35 Op. O.L.C. 8 (2010). For a vigorous
argument against the OLC position, see Paul Cassell et al., Crime Victims' Rights During Criminal Investigations? Applying the Crime
Victims' Rights Act Before Criminal Charges Are Filed, 104 J. Crim. L. & Criminology 59, 61-63 (2014) (arguing for victims' right to confer
and that the right to fair treatment extends to pre-charging stage).
117
Doe v. United States, 950 F. Supp. 2d 1262, 1267-68 (S.D. Fla. 2013) (re-opening and setting aside a pre-charge non-prosecution
agreement between prosecutors and defense because prosecutor had not consulted with victim in violation of 18 U.S.C. § 3771).
118
See In re Dean, 527 F.3d 391, 395 (5th Cir. 2008) (acknowledging lower court's interpretation of § 3771(a) before any prosecution is
underway); Does v. United States, 817 F. Supp. 2d 1337, 1342-45 (S.D. Fla. 2011) (recognizing that 18 U.S.C. § 3771(a) can apply before
formal charges are filed); Jordan v. Dep't of Justice, 173 F. Supp. 3d 44, 52 (S.D.N.Y. 2016) (citing In re Dean, 527 F.3d at 395); United
States v. BP Prod. N. Am., Inc., No. H-07-434, 2008 WL 501321, at 11 (S.D. Tex. Feb. 21, 2008) (discussing 18 U.S.C. § 3771 and a broad
duty to confer before charges are filed). Another district court refused prosecutors' request to dismiss charges before the prosecutor consulted
the victim. United States v. Heaton 458 F. Supp. 2d 1271, 1272 (D. Utah 2006) (citing victim's right under 18 U.S.C. § 3771(a)(8) "to be
treated with fairness and with respect for [her] dignity and privacy").
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branch is firmly committed to a robust enforcement policy against local government corruption that is also criminalized under
state law, and Congress has supported this agenda by enacting federal crimes intended to duplicate, or greatly overlap, state
offenses. 164 In fact, federal statutes used in anti-corruption cases - [*895] like other federal criminal statutes - rely on and
incorporate state law in federal offense definitions. In light of this structure, federal prosecutions can claim to effectuate state
law goals - an especially straightforward version of federalism-based enforcement redundancy. 165
2. Sexual Assault
In sharp contrast to public corruption, enforcement redundancy through coextensive jurisdiction is largely nonexistent for a
large portion of the serious crimes that dominate state felony dockets, including sexual assaults, domestic violence, and
homicide. 166 Federal law reaches only a small number of these offenses when they intersect a special basis for federal
jurisdiction, such as interstate conduct - like human trafficking - or wrongs that occur on federal property or involve federal
employees. 167 For most kinds of homicides, the lack of redundancy is only a modest hindrance to adequate enforcement;
holding aside distinctive exceptions - such as homicides by police or racially motivated lynchings - there is little evidence to
suggest patterns of homicide underenforcement in state justice systems. 168 Domestic violence and sexual assaults are a
different story. Like local public corruption, sexual assaults have long been a key example of [*896] serious wrongdoing to
which the responses of state and local criminal justice agencies have been deeply problematic. 169
Underenforcement is hard to measure for sexual assaults as it is in other contexts, but central features of the problem are clear
enough. Rape and other forms of sexual assault are dramatically underreported crimes. 170 The leading government effort to
collect data on sexual assaults (and other crimes), the National Crime Victimization Survey, is widely thought to undercount
incidents of those offenses. 171 And rates of victim reports to police departments are even lower. The FBI Uniform Crime
Reports collects data on sexual assaults reported to local police agencies; the number is consistently well below the annual
number reported in the National Crime Victimization Survey. 172
One reason that victims do not to report rapes to law enforcement is the perception that police and prosecutors (as well as
juries) are unduly skeptical of rape allegations. 173 And there is good evidence that law enforcement agencies' responses to
119
See In re Petersen, No. 2:10-CV-298 RM, 2010 WL 5108692, at 2 (N.D. Ind. Dec. 8, 2010) (concluding that prosecutors control charging
decisions and certain victim rights under 18 U.S.C. § 3771(a), including the right ""to confer with the attorney for the Government in the
case,' … arise only after charges have been brought against a defendant and a case has been opened," although a "victim's "right to be treated
with fairness and with respect for [his or her] dignity and privacy,' … may apply before any prosecution is underway" (quoting 18 U.S.C. §
3771(a))); cf. United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N.Y. 2008) (assuming without deciding that some federal victim rights
may apply before any prosecution is under way, but "cannot be read to include the victims of uncharged crimes that the government has not
even contemplated … [or] has not verified to at least an elementary degree").
120
Many state laws grant victims a right to consult only "after the crime against the victim has been charged" or "regarding the charges
filed." Others create only a general right to confer, or "to communicate," "with the prosecution." E.g., Alaska Const. art. I, § 24 (granting "the
right to confer with the prosecution"); Ariz. Const. art. 2, § 2.1(A)(6) (granting the right to "confer with the prosecution, after the crime
against the victim has been charged, before trial or before any disposition of the case and to be informed of the disposition"); Cal. Const. art.
I, § 28(b)(6) (granting the right to "reasonably confer with the prosecuting agency, upon request, regarding … the charges filed … ."); Idaho
Const. art. I, § 22(5) (granting the right to "communicate with the prosecution"); Ill. Const. art. I, § 8.1(a)(4) (granting the right to
"communicate with the prosecution"); Ind. Const. art. I, § 13(b) (amended 1996) (granting the right to "confer with the prosecution"); La.
Const. art. I, § 25 (granting the "right to confer with the prosecution prior to final disposition of the case"); Mich. Const. art. I, § 24(1)
(granting the "right to confer with the prosecution"); N.M. Const. art. 2, § 24(A)(6) (granting the "right to confer with the prosecution"); N.C.
Const. art. I, § 37(1)(h) (granting the "right as prescribed by law to confer with the prosecution"); Or. Const. art. I, § 42(1)(f) (granting the
"right to be consulted, upon request, regarding plea negotiations involving any violent felony"); S.C. Const. art. I, § 24(A)(7) (granting the
right to "confer with the prosecution, after the crime against the victim has been charged, before the trial or before any disposition and
informed of the disposition"); Tenn. Const. art. I, § 35(a) (granting the "right to confer with the prosecution"); Tex. Const. art. I, § 30(b)(3)
(granting the "right to confer with a representative of the prosecutor's office"); Va. Const. art. I, § 8-A(7) (granting the "right to confer with
the prosecution"); Wis. Const. art. I, § 9m (granting an "opportunity to confer with the prosecution"); Del. Code Ann. tit. 11, § 9405 (2018);
Ga. Code Ann. § 17-17-11 (2018); Haw. Rev. Stat. § 801D-4(a)(1) (2017) (granting the right of victim to be informed of the final disposition
of the case); Neb. Rev. Stat. 29-120 (2017) (requiring the prosecution to make a good faith effort to consult with victim); N.Y. Exec. Law §
642(1) (LexisNexis 2018) (providing standards for fair treatment of victims); Ohio Rev. Code Ann. § 2930.06(A) (LexisNexis 2018) (stating
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sexual assault reports are ineffective. Police clearance-by-arrest rates are low. 174 Detailed studies of how police departments
handle reported sexual assault cases find "substantial attrition," [*897] typically at the point when police decide whether to
make an arrest. 175 In the Los Angeles Police Department, only one report in nine was cleared by arrest; one in ten resulted in
prosecution. 176 One hurdle lies in forensic evidence development: law enforcement agencies nationwide have suffered long
backlogs in testing rape evidence kits, 177 although federal funding has recently helped reduce that problem. 178
Notoriously, things used to be much worse. Under the common law definition, rape convictions required proof that the offender
used force to overcome the victim's "utmost resistance." 179 Evidence of women's - and only women's - prior sexual conduct or
reputation for "unchastity" was a permissible basis on which to infer consent. 180 The law excluded rape of one's spouse from
[*898] the offense definition. 181 Prosecutors and police were openly skeptical of rape accusations and reluctant to
investigate. 182
Yet much of this legal infrastructure intended to restrict rape law enforcement has been abolished. Rape offenses have been
revised to eliminate resistance requirements, and many states also removed the requirement to prove use of force. 183 Evidence
rules are now more favorable to sexual assault complainants: rape shield laws in all jurisdictions prohibit use of a complainant's
past sexual behavior as character evidence or a basis on which to infer consent, 184 while evidence rules in federal courts and
nineteen states permit evidence of the defendant's past sexual offenses to show propensity to commit sexual assaults. 185 Some
police departments have officers specially trained in sexual assault investigations, and prosecutors' offices (as required by
statute in some states) have specially trained units dedicated to sexual assault prosecutions. 186 Hospitals and [*899] social
service agencies likewise now have staff trained in forensic interviewing and evidence-gathering in the course of aiding assault
victims. 187
that the "prosecutor … shall confer with the victim in the case before pretrial diversion is granted … [or] before amending or dismissing a
charge").
121
No rights of administrative review are specified in the state victims' rights laws cited supra note 120.
122
Five states place all their prosecutors within a single state agency, which at least potentially makes possible hierarchical oversight. In
New Jersey, Connecticut, Rhode Island, Delaware, and Alaska, local prosecutors are appointed by, and under the supervision of, the state
attorney general. See Steven W. Perry, Bureau of Justice Statistics, U.S. Dep't of Justice, Prosecutors in State Courts, 2005, at 2 (2006),
https://www.bjs.gov/content/pub/pdf/psc05.pdf (noting Alaska, Connecticut, and New Jersey do not elect prosecutors; Delaware and Rhode
Island elect attorneys general who appoint all prosecutors; all other states elect prosecutors at the local level). Id. at 11. For an example of a
state attorney general's limited authority over locally elected prosecutors, see, for example,Va. Code § 2.2-511 (2018).
123
Equal protection and due process doctrines nominally empower courts to review charging decisions motivated by racial bias or retaliation
for exercising fundamental rights, and inquiry into selective charging implicitly requires examining biased declinations as well. But these
doctrines are wholly deferential to prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 469 (1996) (holding that equal
protection doctrine bars racially biased charging); Wayte v. United States, 470 U.S. 598, 607-08 (1985) (holding that due process bars
charging in retaliation for exercising fundamental rights); see also McCleskey v. Kemp, 481 U.S. 279, 312-314 (1987) (holding that statistical
evidence of bias in death penalty administration insufficient to prove constitutional violation without proving purposeful discrimination in
defendant's case). For a classic account, see Kenneth Culp Davis, Discretionary Justice: A Preliminary Inquiry 188, 207-08 (1969) ("The
affirmative power to prosecute is enormous, but the negative power to withhold prosecution may be even greater, because it is less protected
against abuse… . The plain fact is that nine-tenths of local prosecutors' decisions are supervised or reviewed by no one.").
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This basic overview - drawn from a substantial scholarly literature - paints a somewhat contradictory picture. On the one hand,
the primary story is one of longstanding underenforcement - a combination of explicit legal policies, practical evidencegathering
and proof challenges, and cultural biases resulted in a notoriously weak response to sexual assaults by state criminal
justice systems. On the other hand, there is a story, over the last forty years or so, of wide-ranging success in achieving reforms
on several fronts - substantive and procedural law, institutional design, and resource allocation - designed to improve
enforcement capacity. In other words, U.S. jurisdictions made substantial progress against an ingrained tradition of
underenforcement without turning to any model of enforcement redundancy - federalization, private prosecution, or judicial
review. That is more than state justice systems were ever able to do with regard to local government corruption, where the
remedy instead was the rise of federal criminal law enforcement.
And yet, few seem to consider this reform story a success. 188 The data on underreporting by victims, low arrest rates by
police, and charging rates by prosecutors (along with the rape kit [*900] testing backlog) make it easy to view state criminal
justice systems as failing to achieve adequate enforcement responses to sexual assaults despite the scope and gravity of the
problem - 124,000 offenses reported to police in 2015, and 431,000 assault reports estimated by the National Crime Victim
Survey. 189
This story of reform, its decidedly limited success, and the responses to that record all reveal insights about the prospects for
redressing underenforcement through redundancy in this context. Intersecting feminist, victim rights, and rape-law-reform
movements have achieved some remarkable reforms through the political process over the last four decades. U.S. criminal
justice, like U.S. public law generally, is responsive to popular sentiment, well-organized reform movements, and interest
groups. 190 But these movements never sought any mechanism of enforcement redundancy, and federal and state lawmakers
never seriously considered one. Even now, when offense definitions, victim rights, evidentiary rules, and organizational
changes in law enforcement agencies offer few plausible options for further improvement, there is effectively no sign of
interest in private prosecution and judicial or administrative oversight. Instead, the sole focus of further innovation to address
endemic underenforcement of sexual assault offenses is the federal government. And most federal policy - and policy proposals
- stop short of expanding federal law to cover sexual assaults now within the jurisdiction solely of state courts. 191 A notable
124
Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (rejecting private plaintiff's challenge on federal equal protection grounds to state
policy of prosecuting only married men for failures to pay child support, concluding "in American jurisprudence at least, a private citizen
lacks a judicially cognizable interest in the prosecution or nonprosecution of another"); Leeke v. Timmerman, 454 U.S. 83, 84 (1981)
(extending Linda R.S. to hold that private citizens have "no cognizable interest" in process by which magistrates decide whether to issue
warrants on criminal complaints); cf. Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382-83 (2d Cir. 1973) (rejecting purported
crime victims' request that court order prosecutors to charge).
125
See, e.g., Colo. Rev. Stat. § 16-5-209 (2017) ("The judge of a court having jurisdiction of the alleged offense, upon affidavit filed with the
judge alleging the commission of a crime and the unjustified refusal of the prosecuting attorney to prosecute any person for the crime, may
require the prosecuting attorney to appear before the judge and explain the refusal. If … the judge finds that the refusal of the prosecuting
attorney to prosecute was arbitrary or capricious and without reasonable excuse, the judge may order the prosecuting attorney to file an
information and prosecute the case or may appoint a special prosecutor to do so."); Mich. Comp. Laws § 767.41 (2017) ("If, upon
examination, the court is not satisfied with the [prosecution's] statement, the prosecuting attorney shall be directed by the court to file the
proper information and bring the case to trial."); Neb. Rev. Stat. § 29-1606 (2017) ("If, upon such examination, the court shall not be satisfied
with the [prosecution's] statement, the county attorney shall be directed by the court to file the proper information and bring the case to
trial."); Pa. R. Crim. P. 506(B)(2) (requiring prosecutors to give reasons for declining to prosecute a criminal complaint filed by a private
party, and permitting "the affiant [to] petition the court of common pleas for review of the decision"); In re Hickson, 2000 PA Super 402, PP
12-19 (describing victim standing to seek judicial review of decisions not to prosecute based on private complaints); see also State ex rel.
Clyde v. Lauder, 90 N.W. 564, 569 (N.D. 1902) ("The more modern rule, and that adopted in this state, is the reverse of that at common law.
In this state, while the prosecutor may file with the court his reasons for not filing an information … it is the province of the court to
determine the ultimate question whether the case shall be prosecuted or dismissed."); cf. Olsen v. Koppy, 593 N.W.2d 762, 765-67 (N.D.
1999) (citing Lauder, 90 N.W. 564, with approval).
126
See Cal. Penal Code § 1385 (West 2016) ("The judge or magistrate may, either of his or her own motion or upon the application of the
prosecuting attorney, and in the furtherance of justice, order an action to be dismissed."); Darryl K. Brown, Free Market Criminal Justice 35-
37 (2016); Valena E. Beety, Judicial Dismissals in the Interest of Justice, 80 Mo. L. Rev. 629, 640-43 (2015) (advocating for a shift in courtreviewed
dismissals).
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exception is Professor Donald Dripps's current proposal to expand federal criminal law to cover most sexual assault offenses -
precisely the model of federal-state enforcement redundancy that [*901] exists now for drug crimes, corruption, police
violence, and much else. 192 But otherwise, existing policies and reform proposals emphasize more modest, although
meaningful, federal efforts to improve state justice administration through, for example, funding grants (as for rape kit testing)
193 and occasionally by litigation to force institutional reforms in local agencies.
In fact, federal law empowers the U.S. Justice Department to sue local police departments and other agencies, and authorizes
structural injunctions to remedy systemic misconduct. 194 But the Department's use of this authority has largely focused on
police violence rather than sexual assault underenforcement. 195 Various local law enforcement agencies have entered consent
decrees under which they adopt institutional and policy reforms to reduce patterns of misconduct, even though federal
intervention is hampered by the paucity of data on police misconduct, limited federal resources, and at times the political
commitment of the presidential administration. 196 More to the point here, in only a few cases have federal officials targeted
local agencies' inadequate responses to sexual assault. 197
In sum, and in sharp contrast to public corruption, the problem of underenforcement in the sexual assault context reveals the
resistance, and cost, of U.S. criminal justice to institutional structures of enforcement redundancy. Having ruled out judicial
review and private prosecution from the imaginations of reform-movement activists, the only alternative is the one that U.S.
criminal justice always favors - federalism. Where federal criminal law takes on an enforcement agenda, it is usually effective.
198 Where tradition, politics, jurisdictional limits, or policy [*902] choices restrict the reach of federal law, as with sexual
assault, the U.S. justice system is largely out of options. States were willing to change substantive and procedural law in hopes
of improving rape prosecutions, but not to infringe prosecutors' monopoly control of charging by expanding modes of judicial,
administrative, or private-party oversight.
3. Police Violence
127
New York granted courts nolle prosequi authority in 1829, during its era of private and judicially appointed prosecutors. McConville &
Mirsky, supra note 81, at 35 (citing 1829 N.Y. Rev. Stat. tit. IV, § 68, p.730 & § 54. p.726). For a broad overview of state nolle pros laws, see
Annotation, Power of Court to Enter Nolle Prosequi or Dismiss Prosecution, 69 A.L.R. 240 (1930). The federal rule is Fed. R. Crim. P. 48(a).
Note that these rules give judges implicit power to compel prosecutors to litigate charges they would rather dismiss. For decisions insisting on
judicial deference, see, for example, Genesee Prosecutor v. Genesee Circuit Judge, 215 N.W.2d 145, 147-48 (Mich. 1974). For similar
examples in federal cases, see United States v. Smith, 55 F.3d 157, 159-60 (4th Cir. 1995); United States v. Perate, 719 F.2d 706, 710-11
(4th Cir. 1983); United States v. Smith, 853 F. Supp. 179, 183-84 (M.D.N.C. 1994); Dawsey v. Gov't of Virgin Islands, 931 F. Supp. 397,
402-04 (D.V.I. 1996). A standard explanation for deference is that judges lack means to compel prosecutors to litigate charges at trial. See,
e.g., United States v. Greater Blouse, Skirt & Neckwear Contractors Ass'n, 228 F. Supp. 483, 489-90 (S.D.N.Y. 1964) ("Even were leave of
Court to the dismissal of the indictment denied, the Attorney General would still have the right to … , in the exercise of his discretion, decline
to move the case for trial. The Court in that circumstance would be without power to issue a mandamus or other order to compel prosecution
of the indictment, since such a direction would invade the traditional separation of powers doctrine."). But judges have options short of
mandamus. Presumably they could hold prosecutors in contempt for failures to appear, as they could for all other attorneys. And whenever
prosecutors retain an interest charges they seek to dismiss, judges could incentivize them by ruling that failure to litigate charges results (as
for civil parties) in forfeiture of the claim, or dismissal with prejudice.
128
For an overview of Canadian law on this point, see Mark Phillips, The Public Interest Criterion in Prosecutorial Discretion: A Lingering
Source of Flexibility in the Canadian Criminal Process?, 36 Windsor Rev. Legal & Soc. Issues 43 (2015) (describing case law requiring great
judicial deference to prosecutorial discretion). For Australia cases on prosecutorial discretion, see Miller v Commonwealth Dir. of Pub.
Prosecutions [2005] 142 FCR 394, 399-400 (Austl.).
129
Manikis, supra note 60, at 29. In addition, many nineteenth-century state courts justified privately funded prosecutions by citing the
public value of these contributions to supplement underfunded district attorney offices. See Ireland, supra note 83, at 47, 49-51 (citing and
quoting multiple state courts). Private prosecutors may have different reasons to proceed when despite comparatively low odds of winning a
conviction. Some of those motivations, at least, can be public-regarding. Avlana Eisenberg makes the point that prosecuting hate crimes
cases, for example, can have expressive and educative value that justifies pursuing well-grounded cases despite skeptical juries. Eisenberg,
supra note 45, at 893-95, 902-18.
130
For discussions on the common law aversion to private prosecution, see Ireland, supra note 83 and for a review of the impact of racial
tensions on private prosecution, see Blackmon, supra note 98.
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Responses to unjustified police violence reveal a third outcome for enforcement redundancy confined to the federalism model.
Federal enforcement authority extends to cases of police violence to a much greater degree than for sexual assaults. That
authority extends as well to other kinds of bias-motivated wrongdoing by both private actors and government officials, which
local police and prosecutors have at times ignored or devalued, and for which state-level enforcement commitment continues to
be uneven. 199 Federal jurisdiction is coextensive with state jurisdiction regarding police wrongdoing, and the Justice
Department's institutional capacity for enforcement probably exceeds that of its state counterparts, but in one respect the
overlap is not complete. The key substantive criminal offenses available to prosecutors in the federal code are somewhat more
restrictive. The primary federal statute used to charge cases of [*903] police excessive use of force requires proof of willful
deprivation of rights, 200 a strict mens rea standard that makes it harder for federal prosecutors to prove liability than it would
be for state prosecutors relying on typical assault or homicide offense definitions. 201 The fact that Congress has for decades
let stand this mens rea hurdle to excessive-force prosecutions suggests that federal legislators, if not Justice Department
officials, are less committed to a full federal-state enforcement redundancy - or "to altering the federal-state balance in order to
reinforce state law enforcement" - than they are for public corruption offenses. 202
That limit notwithstanding, federal prosecutions in this area have a track record of succeeding where state prosecutions failed
or were never attempted, and in that way providing at least a partial remedy for underenforcement by state criminal justice
officials. Much of the federal advantage comes from the fact that federal prosecutors are, in general, better situated to
objectively investigate, assess, and prosecute wrongdoing by police officers than are local prosecutors who ordinarily interact
with and depend upon those officers (or at least their agencies). This is not a particular criticism of local prosecutors' offices; it
is one instance of the basic problem that officials (and people generally) are untrustworthy judges of the conduct of others with
whom they have affiliations, allegiances, or ongoing relationships. For that reason a few states assign such cases to state-level,
rather than local, officials. 203 And the U.S. Justice Department attempts to collect data on deaths in jails, prison, or during
[*904] attempted arrests, to facilitate Justice Department oversight. 204 The same concerns motivate English laws applying
special judicial scrutiny (when triggered by requests from victims' families) to prosecutor's decisions not to charge in the case
of death caused by law enforcement officials or occurring in official custody. 205
131
Some federal states such as Germany and Canada lack enforcement redundancy because they use a single, nationwide, criminal code,
which is enforced for prosecution agencies and courts organized at the state or provincial level. See generally Eric P. Polten & Eric Glezl,
Federalism in Canada and Germany: Overview and Comparison (2014) (describing similarities in German and Canadian federalism,
including allocating authority over substantive criminal law to the federal government but criminal justice administration to state or
provincial prosecutors and courts). In Australia, like in the United States, states and the federal government each have their own criminal
codes. But Australian federal criminal authority is confined much more narrowly than in the United States to conduct that implicates a
distinct federal interest. See generally Arther B. Gunlicks, The Lander and German Federalism 59, 72, 129 (2003) (describing German
criminal affairs and jurisdictions as compared to the United States); Polten & Glezl, supra, at 5-6, 10, 13-14; Brian Galligan, Comparative
Federalism, in The Oxford Handbook of Political Institutions 261, 266-75 (Sarah A. Binder et al. eds., 2008) (discussing federalism and
judicial review and regulations); Kathleen Daly & Rick Sarre, Criminal Justice System: Aims and Processes, in Crime and Justice: A Guide
to Criminology 357 (Darren Palmer et al. eds., 5th ed. 2017) (examining the processes and purposes of the criminal justice system); Vicki
Waye & Paul Marcus, Australia and the United States: Two Common Criminal Justice Systems Uncommonly at Odds, Part 2, 18 Tul. J. Int'l
& Comp. L. 335 (2010) (highlighting similarities and differences between the two countries in relation to criminal laws and policies).
132
Since 2011, Switzerland also now has unified national criminal law and procedure codes administered in all cantons. See Anna Petrig,
The Expansion of Swiss Criminal Jurisdiction in Light of International Law, 9 Utrecht L. Rev. 34, 36 (2013).
133
See Director of Public Prosecutions Act 1983 s 10(2); Annual Report 2014-15, supra note 71.
134
In unusual circumstances, two states may also have concurrent jurisdiction over the same crime, enabling one to assess the adequacy of
the other's enforcement effort. For a rare example, see Heath v. Alabama, 474 U.S. 82, 91-93 (1985).
135
See U.S. Const. amend. V (Double Jeopardy Clause); Bartkus v. Illinois, 359 U.S. 121, 136-39 (1959) (affirming power of state to
prosecute defendant after a federal prosecution for the same bank robbery); United States v. Lanza, 260 U.S. 377, 384-85 (1922) (approving
federal prosecution after state prosecution based on same conduct).
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U.S. victims lack a right to challenge noncharging decisions in cases of homicides by police. But they, along with organized
interest groups, can lobby prosecutors to prosecute. In some cities, voters and activist groups have pressured local prosecutors
on police violence cases. 206 It is difficult to assess what role public sentiment plays (and should play) in charging decisions.
But it is not hard to find instances of potent political challenges to non-prosecution of police officers in the wake of fatal
shootings. Chief prosecutors in Cleveland, Ohio, and Chicago, Illinois, lost reelection bids in the wake controversial failures to
charge police officers in fatal-shooting cases. 207 In the midst of popular and activist attention on such cases, prosecutors in
several other cities have charged officers for offenses related to suspects' deaths, with mixed records of success. 208 Chicago
prosecutors did so a year [*905] after police fatally shot a suspect and only upon public release of video of the incident 209 - a
scenario that suggests public attention corrected a noncharging decision influenced by improper considerations.
However, U.S. localities vary widely in their demographics, politics, and community sentiments toward these cases. 210 That
variation, plus local election of prosecutors, contributes to widely varying enforcement policies across prosecution offices. 211
And it means victims who urge prosecutions when local majority sentiment disfavors it have lower odds of successfully
influencing [*906] prosecutors. The political variability of local prosecutors' charging policies - and the vulnerability of those
decisions to local sentiment that favors unjustified underenforcement - are a key reason federal redundancy is important in this
context. Given that police misconduct is an established part of the U.S. Justice Department's enforcement agenda, federal
prosecutors should be a check on political judgments of local prosecutors. They also provide victims with a different agency to
appeal to for investigation and prosecution.
This federalism-based model of redundant enforcement has advantages as a strategy to reduce risks of unmerited
underenforcement. The alternative model authorizing judicial review of declination decisions, as is used in England, relies on
the independence of judges from the prosecutors whom they review. 212 The federalism model relies on the independence of
federal prosecutors from state prosecutors and police. The executive branch of one sovereign scrutinizes the enforcement
response of another. And it has the capacity to act on its independent judgment, while courts are confined to ordering
136
See United States v. Gamble, 694 Fed. App'x. 750 (11th Cir. 2017), cert. granted, Gamble v. United States, 138 S. Ct. 2707 (2018). Even
if the Court abolishes the dual sovereignty doctrine in Gamble, federal and state prosecutors will continue to be able to prosecute the same
offenders for the same conduct in many cases. Under Blockburger v. United States, 284 U.S. 299, 304 (1932), the Double Jeopardy Clause
precludes multiple prosecutions only if the subsequent charge has the "same elements" as the first. See United States v. Dixon, 509 U.S. 688,
696 (1993) (affirming Blockburger's same-elements test as the sole basis for double jeopardy claims). Unlike the firearm offenses that gave
rise to Gamble's Double Jeopardy claim, federal and state crimes covering the same conduct often have distinct elements. For an example, see
infra notes 200-02 and accompanying text.
137
See, e.g., U.S. Dep't of Justice, United States Attorneys' Manual, supra note 55, § 9-2.031 (explaining the "Petite policy" criteria for
federal prosecution of same conduct after state prosecution).
138
For an example of a high-profile federal declination in the wake of state declination, see U.S. Dep't of Justice, Department of Justice
Report Regarding the Criminal Investigation Into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson
5-9 (2015), https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
For a study of federal declination, see Reuters, U.S.
Police Escape Federal Charges in 96% of Rights Cases, Fortune (Mar. 13, 2016),http://fortune.com/2016/03/13/us-police-federal-chargesdata
(explaining that between 1995 and 2015, "[federal] prosecutors turned down 12,703 potential civil rights violations out of 13,233 total
complaints. By contrast, prosecutors rejected only about 23 percent of referrals in all other types of criminal cases").
139
See, e.g., Koon v. United States, 518 U.S. 81, 113-14 (1996) (remanding for new sentence calculation of police officers convicted in
federal court after acquittals in state court); Blinder, supra note 52 (describing federal conviction of South Carolina police officer after an
unsuccessful homicide prosecution of the officer in state court); Seven Baltimore City Police Officers Arrested for Abusing Power in Federal
Racketeering Conspiracy, U.S. Dep't Just. (Mar. 1, 2017), https://www.justice.gov/usao-md/pr/seven-baltimore-city-police-officers -arrestedabusing-power-federal-racketeering.
140
Moreover, internal Justice Department decisions are not subject to judicial review. See, e.g., U.S. Dep't of Justice, Criminal Resource
Manual § 162 (2016); U.S. Dep't of Justice, United States Attorneys' Manual, supra note 55, § 9-2.031.
141
For a recent example of change in Justice Department policies, see Eric Lichtblau, Sessions Indicates Justice Department Will Stop
Monitoring Troubled Police Agencies, N.Y. Times (Feb. 28, 2017), https://www.nytimes.com/2017/02/28/us/politics/jeff-sessions-crime.html.
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103 Minn. L. Rev. 844, *906
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prosecutors to reverse their earlier non-prosecution decisions (or, occasionally, to appointing substitute prosecutors). This
"executive separation of powers" model has proven effective, although whether it is effective enough is debated; it depends on
whether all cases of police violence that should have been prosecuted - based on the evidence and the public interest in
enforcement - were prosecuted. State and federal prosecution offices have distinct professional cultures and are responsive to
different constituencies and modes of political supervision, which increases the independence of one from the other. 213 On the
other hand, federal prosecution is still to some degree political; it varies with the policy priorities of presidential administrations
214 to a degree that judicial review [*907] (in theory) should not. When there is less federal commitment to oversight of states'
approaches to police violence, enforcement redundancy is weak. 215 Victims and other interested parties have no other
recourse.
C. Underenforcement and Prosecutor Political Accountability
In short, U.S. strategies of enforcement redundancy have a relatively strong track record for some crimes such as public
corruption, are robust but vulnerable to political shifts for others such as a police violence, and are notably weak with regard to
certain offenses, such as sexual assaults. That last category is important because that weakness extends well beyond sexual
assault offenses; many of the routine crimes that make up typical state criminal dockets are not within the scope of federal
criminal law enforcement. And since private prosecution and judicial or administrative review of prosecutorial decisions are
almost completely absent from state criminal justice systems, there is no charging-decision oversight of state prosecutors'
declination decisions and enforcement policies - save for local electoral accountability. In forty-five of fifty states, chief
prosecutors are directly elected in local constituencies. 216 This form of democratic accountability operates as a kind of check
on underenforcement, although it has significant limits in its capacity to play that role.
State prosecutors' elected status is likely the best explanation [*908] for why victim-based checks on declination - private
prosecution or judicial review - never became a part of victims' rights reforms enacted in U.S. jurisdictions in recent decades.
First, prosecutors are politically powerful groups with legislatures, and they zealously guard their unfettered discretion over
criminal charging. 217 Second, it has led even courts to disfavor any degree of judicial review of charging decisions, on the
On Justice Department professionalism, see Jim McGee & Brian Duffy, Main Justice: The Men and Women Who Enforce the Nation's
Criminal Laws and Guard Its Liberties 7-9 (1996); Jed Handelsman Shugerman, The Creation of the Department of Justice:
Professionalization Without Civil Rights or Civil Service,66 Stan. L. Rev. 121, 125-26 (2014).
142
The arguable exceptions are federal crimes for race-based and civil rights-related violence and for local officials' abuses of power; in
those realms federal authorities responded to widespread failures by state law enforcement and justice systems. See generally Michal R.
Belknap, Federal Law and Southern Order: Racial Violence and Constitutional Conflict in the Post-Brown South 154-58 (1987) (highlighting
the federal response to southern violence in mid-twentieth century); Rhodri Jeffreys-Jones, The FBI: A History 19-24 (2007) (tracing FBI to
nineteenth century federal efforts to combat Ku Klux Klan terrorism of voters); William J. Stuntz, The Collapse of American Criminal Justice
99-157 (2011) (documenting the expansion of federal role in law enforcement and prosecution in the late nineteenth century).
143
See infra Part III.B.1.
144
See, e.g., Screws v. United States, 325 U.S. 91, 110-14 (1945).
145
For an indication that federal enforcement policy is designed to protect specific victim interests, see U.S. Dep't of Justice, FY 2014
Annual Performance Report and FY 2016 Annual Performance Plan I-16-17 (2015),
https://www.justice.gov/sites/default/files/doj/pages/attachments/2015/02/06/fy2014aprfy_2016app2.pdf (describing aspects of the
"Vulnerable People Priority Goal").
146
See Lichtblau, supra note 141.
147
See Paul G. Cassell & James R. Marsh, Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the
Need for a Congressional Response, 13 Ohio St. J. Crim. L. 1, 7 (2015).
148
See U.S. Dep't of Justice, supra note 145, at II-22, I-33 (describing prioritization of federal prosecutions into financial or government
fraud and child exploitation).
149
See Jane Kim, Taking Rape Seriously: Rape as Slavery, 35 Harv. J.L. & Gender 263, 277-83 (2012) (criticizing inadequate federal
criminalization of rape); Donald A. Dripps, Why Rape Should Be a Federal Crime 4 (2018), (unpublished manuscript),
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rationale that oversight of prosecutors lies in the political process rather than judicial enforcement of legal parameters for
charging. 218 Third, popular and political pressure has succeeded in redressing some underenforcement practices by
prosecutors (and police) when victim groups, or issues tied to specific offenses, achieve political potency. Intoxicated driving is
perhaps the best example of harmful wrongdoing about which many enforcement agencies have successfully revised their
policies to increase enforcement. 219 Domestic violence and sexual assaults are other examples where enforcement shifts have
been more limited but still significant. 220
Responses by local agencies to this type of pressure have taken three basic forms. First, chief prosecutors adopted internal
office policies that mandate - or set a strong presumption for - [*909] prosecution of specific crimes when evidence is
sufficient. 221 Second, prosecutors get specialized training on how to address the particular challenges posed by specific kinds
of cases such as domestic violence or sexual assault. 222 Finally, many offices have established dedicated, in-house units of
prosecutors who specialize in these same kinds of crimes. 223 States legislatures have encouraged these reforms, 224 but
virtually everywhere, the adoption, content, and enforcement of policies is left to local chief prosecutors. No legislation sets
specific charging criteria, authorized judicial review, or gives enforceable rights to victims. 225
These responses to underenforcement are meaningful, but their form is more political than legal. They are the kinds of
responses produced by a system of electorally accountable prosecutors and legislatures. 226 Often they are in large part
attributable to successful political efforts by advocacy groups. Mothers Against Drunk Driving (MADD), for example,
successfully urged reforms of laws and enforcement practices against intoxicated driving. 227 Feminist groups and women's
advocates play important, ongoing roles in reforming police and prosecution policies, substantive criminal laws, and evidence
rules for domestic [*910] violence and sexual assault offenses. 228 These efforts have succeeded in changing attitudes,
professional cultures, and enforcement practices in police and prosecution agencies that had contributed to underenforcement in
these areas. 229 Prosecution units specializing in offenses such as domestic violence, for example, strengthen professional
culture committed to enforcement by attracting lawyers who share that commitment and who develop expertise to act on it. 230
https://papers.ssrn.com/sol3 /papers.cfm?abstract_id= 3095741. Without grounds for federal jurisdiction - such as conduct involving
interstate travel or occurring on federal property - sexual assaults and other violent offenses are the exclusive province of state officials. Kim,
supra, at 277. For examples of the limits built into federal offenses, see18 U.S.C. § 1591(a)(1) (2016) (knowingly recruiting or enticing
minors to engage in commercial sex acts); 18 U.S.C. § 2423(b) (2016) (prohibiting travel in interstate commerce for purpose of engaging in
illicit sexual conduct with minor females).
150
The scholarly literature on public corruption is considerable. For a short overview of the debate and the federal law, see David Mills &
Robert Weisberg, Corrupting the Harm Requirement in White Collar Crime, 60 Stan. L. Rev. 1371, 1377-94 (2008). For longer treatments,
see generally Political Corruption: A Handbook (Arnold J. Heidenheimer et al. eds., 2d ed. 1989) (compiling comparative scholarly work on
political corruption); Routledge Handbook of Political Corruption: A Handbook (Paul M. Heywood ed., 2015) (focusing on international and
comparative corruption issues).
151
See, e.g., McDonnell v. United States, 136 S.Ct. 2355, 2365 (2016) (describing quid pro quo requirement for federal bribery offense, 18
U.S.C. § 201, in relation to extortion and honest-services fraud statutes, 18 U.S.C. §§1951(a) & 1346, used to prosecute corruption by state
officials); Skilling v. United States, 561 U.S. 358, 407-09 (2010) (clarifying quid pro quo requirements for bribery and kickback conduct in
honest-services fraud prosecutions).
152
See 18 U.S.C. § 201 (2012) (criminalizing bribes and gratuities); 18 U.S.C. § 666 (2012) (criminalizing theft or bribery related to
federally funded programs); 18 U.S.C.§§1341, 1343, 1346 (2016) (criminalizing mail, wire, and "honest services" fraud); 18 U.S.C. § 1951
(2012) (criminalizing extortion "under color of official right").
153
See, e.g., Nicholas Kusnetz, Only Three States Score Higher Than D+ in State Integrity Investigation; 11 Flunk, Ctr. for Pub. Integrity,
https://www .publicintegrity.org/2015/11/09/18693/only-three-states-score-higher-d-state -integrity-investigation-11-flunk (last updated Nov.
23, 2015) (scoring states and explaining methodology; all but three states scored a "D+" or below on A-to-F scale); see also Corruption
Perceptions Index 2016, Transparency Int'l (Jan. 25, 2017), https://www.transparency.org/news/feature/corruption_
perceptions_index_2016#table (ranking 174 countries by corruption scores; the United States ranked eighteenth). On the challenges facing
corruption measures, see generally Staffan Andersson, Beyond Unidimensional Measurement of Corruption, 19 Pub. Integrity 58 (2017)
(analyzing the challenges posed by treating corruption as a one-dimensional phenomenon); Adriana S. Cordis & Jeffrey Milyo, Measuring
Public Corruption in the United States: Evidence From Administrative Records of Federal Prosecutions, 18 Pub. Integrity 127 (2016)
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Successes notwithstanding, reliance on this kind of political supervision cannot be an equally effective remedy for
underenforcement across all contexts. The independence of local prosecution and police agencies means that policies,
resources, and constituent support for rigorous enforcement inevitably vary. 231 They will differ not only across localities but
also according to the type of offense and the identity of the victim. Some groups, such as victims of intoxicated drivers, can
succeed at achieving more rigorous enforcement policies. 232 Other victims with less political support or popular sympathy -
undocumented immigrants, sex workers, prison inmates, and casualties of police shootings 233 - have dimmer prospects when
prosecutors are responsive to local majorities' preferences. In some places, public [*911] sentiment is a force in favor of
charging in categories of wrongdoing that have suffered from patterns of underenforcement. In other places, the same can be a
force against charging and can reinforce underenforcement practices. Either way, electoral accountability can lead to undue
pressure on prosecutors to yield to majoritarian or interest-group pressure to avoid "commiting political suicide." 234
In short, political supervision, as an institutional structure to minimize unjustified failures to prosecute, is an institutional
structure with a highly uneven track record and decidedly mixed prospects. On the other hand, some of the strategies for
enforcement redundancy examined above that take the form of legal entitlements would likely also achieve partial success.
Private prosecution is an unpromising device to aid certain marginalized victim groups such as inmates, undocumented
immigrants, or low-income people generally. Other options - review of declination by courts, or concurrent jurisdiction of a
separate prosecution agency - hold somewhat more promise. Judicial review is somewhat more removed from political
influence (though perhaps less so in jurisdictions that elect judges), 235 although that mechanism still depends on victims to
petition for review. The overlap of federal and state criminal jurisdiction subjects enforcement to review by a rival agency
subject to, at worst, different political influences. At best, as with a Justice Department that can minimize political influence
with professional and bureaucratic norms, it expands the prospect for less political review. 236
(criticizing the use of federal convictions data in public corruption analysis and advocating instead for the use of administrative data). For a
list of state criminal laws and ethical rules governing corruption, see Penalties for Violations of State Ethics and Public Corruption Laws,
Nat'l Conf. St. Legislatures,http://www.ncsl.org/research/ethics/50-state-chart-criminal-penalties -for-public-corr.aspx (last updated Sept. 10,
2018).
154
Pub. Integrity Section, U.S. Dep't Of Justice, Report to Congress on the Activities and Operations of the Public Integrity Section for
2015, at i (2015), https://www.justice.gov/criminal/file/891961/download.
155
See, e.g., id. at 17-19 (providing examples of the Justice Department's prosecution of state and local officials).
156
Id. at 23-24 tbl.2 (tracking the number of convictions of corrupt public officials during 1996-2015); id. at 25-28, tbl.3 (tracking public
corruptions prosecutions by federal district during 2006-2015); Patricia Salkin & Bailey Ince, It's a "Criming Shame": Moving from Land
Use Ethics to Criminalization of Behavior Leading to Permits and Other Zoning Related Acts, 46 Urb. Law. 249, 250 (2014) (describing
federal prosecution of state and local officials).
157
Fed. Bureau of Investigation, U.S. Dep't of Justice, The FBI Story: 2017, at 11 (2017), https://www.fbi.gov/file-repository/the-fbi-story-
2017 .pdf/view (describing public corruption as a "key responsibility").
158
See, e.g., id. at 10-20 (providing specific examples of federal public corruption prosecution for various types of conduct).
159
Id.
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[*912]
CONCLUSION
All justice systems suffer from pockets of unjustified, even pernicious, underenforcement. All recognize that public
prosecutors can be vulnerable to biases and institutional interests that distort enforcement decisions. Especially in recent
decades, nearly all have adopted mechanisms to address those risks. Outside the United States, victim rights legislation has
included provisions directed at unjustified decisions not to prosecute. In other common law countries and in Europe, most
victims may now either seek independent review of prosecutors or initiate prosecutions on their own. Independent review keeps
the safeguard against underenforcement in public hands while strengthening the principle that charging decisions should be
nonpolitical and ministerial in nature. Victim rights reforms in general manifest a judgment that modern criminal justice had
focused excessively on public interests and unduly neglected victims' private interests in criminal prosecutions. Authorizing
victims to challenge declination decisions extends this idea by recognizing victims' private stake in those decisions and
enabling victims to serve the public interest in preventing unjustified failures to prosecute. 237
Virtually all U.S. jurisdictions reject both of those strategies. 238 And rather than insulate their prosecutors from political
[*913] influence, most states rely on electoral politics for oversight of prosecution practices. Instead, the U.S. model opts for
duplicative federal-state jurisdiction against a background of politically attuned state prosecutors. Both this federalism model of
redundant prosecutorial authority - which may be reduced this term by the Supreme Court's decision in Gamble - and the model
of politically responsive prosecutors have proven effective at redressing some types of underenforcement. Both serve some
victims' interests without taking the form of victim rights. And both reflect a preference for political over legal safeguards
against biased or ill-conceived uses of prosecutorial discretion.
American criminal justice is more sanguine than other legal systems about the downsides of prosecutors' electoral
accountability and attention to majoritarian sentiments. U.S. prosecutors' democratic legitimacy works against arguments for
more formal oversight or regulation. Even against the potent political power of victims' rights movements, unfettered executive
charging discretion has proven immutable. 239 But federal prosecutors provide significant oversight, at least for some
160
United States v. Alfisi, 308 F.3d 144, 155-56 (2d Cir. 2002) (Sack, J., dissenting) (arguing that payments to federal officials prosecuted
under 18 U.S.C. § 201 caused no clear harm or "corruption"); Mills & Weisberg, supra note 150, at 1373-74 (discussing the role of fiduciary
duties in criminal liability); id. at 1377, 1386-90, 1404-05 (discussing uncertainty of "harm" in some contexts); id. at 1395-1400 (discussing
honest services); Lex Hemphill, Acquittals End Bid Scandal that Dogged Winter Games, N.Y. Times, Dec. 6, 2003, at D1 (reporting a federal
district judge's criticism of the prosecution, saying "in his 40 years of working in the criminal justice system, he had never seen a case so
devoid of "criminal intent or evil purpose'").
161
For Supreme Court decisions rejecting broad applications of federal anti-corruption statutes, see generally McDonnell v. United States,
136 S. Ct. 2355 (2016) (reversing the former Virginia Governor's conviction for honest-services fraud and extortion); McNally v. United
States, 483 U.S. 350 (1987) (reversing the conviction of state officials and holding that federal mail fraud statute, 18 U.S.C. § 1341, does not
apply to schemes to defraud state citizens of the intangible "right to have the Commonwealth's affairs conducted honestly"). As a matter of
statutory interpretation, the Court requires a "clear statement" that Congress intends a federal criminal statute to duplicate a state crime and
thereby "effect a significant change in the sensitive relation between federal and state criminal jurisdiction." United States v. Bass, 404 U.S.
336, 349-50 (1971); see also Rewis v. United States, 401 U.S. 808, 811-12 (1971). But Congress has made such intent sufficiently clear for
the Court in numerous statutes, including those at issue in Bass (18 U.S.C. § 1202(a), now codified at 18 U.S.C. § 922(g)) and in Rewis (18
U.S.C. § 1952). See, e.g., Perrin v. United States, 444 U.S. 37, 50 (1979) (finding that § 1952 reflects congressional intent "to alter the
federal-state balance in order to reinforce state law enforcement").
162
See, e.g., Roderick M. Hills, Jr., Corruption and Federalism: (When) Do Federal Criminal Prosecutions Improve Non-Federal
Democracy?, 6 Theoretical Inquiries L. 113, 137-44 (2005) (arguing that federal enforcement of public corruption in local governments
harms local styles of democracy); Harvey A. Silverglate & Emma Quinn-Judge, Tawdry or Corrupt? McDonnell Fails to Draw a Clear Line
for Federal Prosecution of State Officials, 2016 Cato Sup. Ct. Rev. 189, 213-19 (2016) (arguing that the honest services statute is too vague to
be fairly enforced); cf. John C. Coffee, Jr., Modern Mail Fraud: The Restoration of the Public/Private Distinction, 35 Am. Crim. L. Rev. 427,
430-31 (1998) (arguing that federal prosecutors rely on broad federal common law crimes in fraud cases against state and local public
officials); Salkin & Ince, supra note 156, at 266-67 (describing aggressive federal enforcement of public corruption in the context of land
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use). But see Mark S. Gaioni, Federal Anticorruption Law in the State and Local Context: Defining the Scope of 18 U.S.C. § 666, 46 Colum.
J.L. & Soc. Probs. 207, 237-45 (2012) (arguing for broad interpretation of § 666 to cover state and local officials).
163
See, e.g., 18 U.S.C. § 1346 (2012) (criminalizing "honest services" fraud). The statute was enacted in 1988 in response to the Supreme
Court's 1987 decision in United States v. McNally, which held that 18 U.S.C. § 1341 did not cover "honest services" fraud. Gaioni, supra note
162, at 243 n.192.
164
See, e.g., Perrin, 444 U.S. at 50 (finding that section 1952 reflects congressional intent "to alter the federal-state balance in order to
reinforce state law enforcement").
165
See, e.g., 18 U.S.C. § 1952 (2012) (prohibiting interstate travel for "unlawful activity," which can be made unlawful by state law); Perrin,
444 U.S. at 50 ("In defining "unlawful activity' [in 18 U.S.C. § 1952], Congress has clearly stated its intention to include violations of state as
well as federal bribery law."); United States v. Welch, 327 F.3d 1081, 1092-1103 (10th Cir. 2003) (reinstating an indictment and holding that
Utah law serves as predicate to define violations of 18 U.S.C. § 1952).
166
See Kim, supra note 149; Dripps, supra note 149, at 3 (noting that sexual assaults in federal law are confined to very limited contexts,
such as human trafficking).
167
See Kim, supra note 149.
168
See Lynching in America: Confronting the Legacy of Racial Terror, Equal Just. Initiative, https://lynchinginamerica.eji.org/report (last
visited Oct. 30, 2018) ("Of all lynchings committed after 1900, only 1 percent resulted in a lyncher being convicted of a criminal offense"
(citing Paula J. Giddings, Ida: A Sword Among Lions 473-74 (2008))). Data on prosecutorial charging decisions is harder to come by, but
clearance rates for homicides - meaning the percentage of cases police resolve, usually by arrest - are higher for homicides than other offense
categories. See 2016 Crime in the United States, FBI: UCR, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/tables/table-17
(last visited Oct. 30, 2018) (reporting that the 2016 national clearance rate for homicides was 59.4%, compared to 45.6% for all violent crime
and 18.3% for property crimes).
169
See S. Rep. No. 103-138, at 42 (1994) ("Police may refuse to take reports [of crimes against women]; prosecutors may encourage
defendants to plead to minor offenses … . At every step of the way, the criminal justice system poses significant hurdles for victims.");
Catharine A. MacKinnon, Rape Redefined, 10 Harv. L. & Pol'y Rev. 431, 439 (2016) ("One out of about ten acts of rape or attempted rape
that fit basic legal definitions in the United States is reported to authorities. Dramatically fewer [reported cases] are prosecuted or result in
convictions … ."). For detailed examination of prosecutor decision-making on sexual assault complaints in three jurisdictions, see Cassia C.
Spohn et al., Nat'l Criminal Justice Reference Serv., Prosecutors' Charging Decisions in Sexual Assault Cases: A Multi-Site Study 85-88
(2001), https://www.ncjrs.gov/pdffiles1/nij/grants/197048.pdf.
170
See Dripps, supra note 149, at 6 & n.25 (noting a National Violence Against Women survey by the Centers for Disease Control found
twice as many rapes as the NCVS survey reported for the same year). See generally Candace Kruttschnitt et al., Estimating the Incidence of
Rape and Sexual Assault (2014) (describing the reasons why it is "highly likely" that the National Crime Victimization Survey, conducted by
the Bureau of Justice Statistics, underestimates rapes and other sexual assaults).
171
Kruttschnitt et al., supra note 170; Dripps, supra note 149.
172
Dripps, supra note 149, at 9 (summarizing and comparing Federal Bureau of Investigation Uniform Crime Reports and National Crime
Victimization Survey data).
173
See supra note 169 and accompanying text.
174
Dripps, supra note 149, at 13-15 (summarizing clearance-rate data from Federal Bureau of Investigation Uniform Crime Reports and
from the Los Angeles County Sheriff's Department).
175
See, e.g., Cassia Spohn & Katharine Tellis, Nat'l Criminal Justice Reference Serv., Policing and Prosecuting Sexual Assault in Los
Angeles City and County VII (2012), https://www.ncjrs.gov/pdffiles1/nij/grants/237582.pdf.
176
Id. at VII-VIII, 8. Data on clearance rates is itself suspect; departments sometimes do not disclose all reports of sexual assaults they
receive. Id. at IV (finding that the L.A. Police Department and the L.A. Sheriff's Department both substantially exaggerated their clearance
rates).
177
Rape Kit Backlogs: Failing the Test of Providing Justice to Sexual Assault Survivors: Hearing Before the Subcomm. on Crime,
Terrorism, and Homeland Sec. of the H. Comm. on the Judiciary, 111th Cong. 21 (2010) (statement of Rep. Anthony Weiner, Member, H.
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Comm. on the Judiciary) (noting that there are over 542,000 untested rape kits); Caitlin Dickson, How the U.S. Ended Up With 400,000
Untested Rape Kits, Daily Beast (Sept. 23, 2014), https://www .thedailybeast.com/how-the-us-ended-up-with-400000-untested-rape-kits;
Dayton Uttinger, Why Is There Still a Rape Kit Backlog?, Women's Media Ctr. (Aug. 1,
2017),http://www.womensmediacenter.com/fbomb/why-is-there-still-a-rape-kit-backlog ("There are an estimated 175,000 untested rape kits
… across the US … .").
178
See Office on Violence Against Women, U.S. Dep't of Justice, Sexual Assault Kit Testing Initiatives and Non-Investigative Kits 3
(2017), https://www.justice.gov/ovw/page/file/931391/download (noting that $ 100 million was awarded to states and localities in 2014-16 to
reduce rape kit backlog).
179
Note, Recent Statutory Developments in the Definition of Forcible Rape, 61 Va. L. Rev. 1500, 1505-07 (1975).
180
See, e.g., State v. Sibley, 33 S.W. 167, 171 (Mo. 1895) ("The rule in this state permitting a witness to be impeached by proof of general
reputation for unchastity is confined to females."); People v. Abbot, 19 Wend. 192, 194 (N.Y. 1838) (permitting questions to the rape
complainant about her past sexual conduct because in rape prosecutions "the material issue is on the willingness or reluctance of the
prosecutrix - an act of the mind").
181
Susan Estrich, Real Rape 8 (1987).
182
See id. at 8-22 (describing traditional rape definitions, spousal exception, evidentiary rules, and police responses to rape reports); Recent
Statutory Developments in the Definition of Forcible Rape, supra note 179, at 1505-07 (describing the "utmost resistance" requirement); see
also State v. Terry, 215 A.2d 374, 376 (N.J. Super. Ct. App. Div. 1965) (affirming that, to prove liability for rape, "it must be shown that [the
victim] did, in fact, resist the assault").
183
Kathleen F. Cairney, Addressing Acquaintance Rape: The New Direction of the Rape Law Reform Movement, 69 St. John's L. Rev. 291,
298-99 (2012).
184
See Fed. R. Evid. 412; Leah DaSilva, The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to
Include Evidence Found on Myspace, 13 Suffolk J. Trial & App. Advoc. 211, 219 (2008) ("In 1974, Michigan became the first jurisdiction to
enact a rape shield law. The federal government and remaining forty nine states followed, most within several years."); cf. Joel E. Smith,
Annotation, Constitutionality of "Rape Shield" Statute Restricting Use of Evidence of Victim's Sexual Experiences, 1 A.L.R. 4th 283 (2018)
(discussing constitutional limits on rape shield rules).
185
See Fed. R. Evid. 413, 414.
186
See, e.g., Cyrus R. Vance, Jr., N.Y. Cty. Dist. Attorney's Office, Sexual Assault and the Criminal Justice System (2010),
http://manhattanda.org/sites/default/files/Sex_Crimes.pdf
[https://web.archive.org/web/20170702150412/
http://manhattanda.org/sites/default/files/Sex_Crimes .pdf] (describing the "Sex Crimes Prosecution Unit" and special units for sexual
assaults crime and victims in hospitals police precincts, and social service agencies). See generally Jennifer G. Long & John Wilkinson, The
Benefits of Specialized Prosecution Units in Domestic and Sexual Violence Cases, AEquitas: Strategies Brief, Dec. 2011, at 1, 1 (describing
how experienced prosecutors improve handling of domestic and sexual violence cases). Similar strategies of offense reform and creation of
dedicated prosecution units have more recently been strategies against another context of endemic underenforcement - crimes against
inmates. See Alysia Santo, Preying on Prisoners: In Texas, Staffers Rarely Go to Jail for Sexually Abusing Inmates, Marshall Project (June 7,
2015), https://www.themarshallproject.org/2015/06/17/preying-on-prisoners (describing a special prosecution unit in Texas focused on
crimes against inmates, and noting that between 1990 and 2006, the number of states with statutes that expressly criminalize sexual abuse of
inmates rose from eighteen to fifty, and prosecution rates rose from thirty-seven to forty-nine percent of staff sexual misconduct case
referrals).
187
See State v. Stahl, 855 N.E.2d 834, 836 (Ohio 2006) (describing the "Developing Options for Violent Emergencies (DOVE) unit" in a
hospital designed to gather evidence from and provide care to sexual assault victims); History of the Movement, Wash. Coalition Sexual
Assault Programs, http://www .wcsap.org/history-movement (last updated May 9, 2016) (describing the establishment of the first rape crisis
centers in 1972). See generally Office Violence Against Women, U.S. Dep't of Justice, A National Protocol for Sexual Assault Medical
Forensic Examinations: Adults/Adolescents (2013), https://www.ncjrs.gov/pdffiles1/ovw/241903.pdf (describing recommendations,
techniques, and strategies for health care providers to maximize forensic evidence gathering during provision of medical care).
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important kinds of crimes within states' jurisdictions. This federalism-based model of enforcement redundancy is a distinctive if
188
Cassia Spohn & Julie Horney, Rape Law Reform: A Grassroots Revolution and Its Impact 77 (1992) (describing expectations that legal
reforms would improve prosecution rates); id. at 100 ("Legal changes did not produce the dramatic results that were anticipated by reformers.
The reforms had no impact in most of the jurisdictions.").
189
Jennifer L. Truman & Rachel E. Morgan, Bureau Justice Statistics, U.S. Dep't of Justice, Criminal Victimization, 2015, at 2 tbl.1 (2016),
https://www.bjs.gov/content/pub/pdf/cv15.pdf (reporting that the National Crime Victimization Survey estimated 431,840 rapes/sexual
assaults in 2015); Crime in the United States by Volume and Rate Per 100,000 Inhabitants, 1996 -2015, Fed. Bureau Investigation,
https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/tables/table-1 (last visited Oct. 30, 2018) (reporting 124,047 rape reports
under the "revised definition").
190
Cf. Jack M. Balkin & Reva B. Siegel, Principles, Practices, and Social Movements, 154 U. Pa. L. Rev. 927, 946-50 (2006) (arguing that
social movements significantly shape the application of constitutional principles); Reva B. Siegel, Text in Contest: Gender and the
Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 279, 328-44 (2001) (arguing that the history of the Nineteenth
Amendment and the Equal Rights Amendment show that the U.S. Constitution is amenable to contestation by social movements).
191
Violence Against Women Act of 1994, Pub. L. 103-322 (1994) (codified at 34 U.S.C.§§12291-12511) (2017) (establishing a broad set of
policies directed at violence against women that creates no federal criminal offenses).
192
Dripps, supra note 149, at 46-49, app. I. For an earlier proposal along the same lines, see Kim, supra note 149, at 304-09.
193
E.g., Office on Violence Against Women, supra note 178 and accompanying text.
194
The statutory authority is 42 U.S.C. § 14141 (2016).
195
See Harmon, Policing Reform, supra note 21 (discussing structural reform aimed at police violence without noting any instances of
targeting sexual assault offenses).
196
Leading observers view this structural reform as insufficient to address the scope of the police-misconduct problems. See id. at 59-61
(describing injunctive relief under 42 U.S.C. § 14141, noting limits on data about police misconduct, and explaining how insufficient data
limits the effectiveness of reform efforts). On the prospect of reduced federal commitment to this strategy in the Trump administration, see
U.S. Attorney Gen., supra note 24; Horwitz et al., supra note 24.
197
See Dripps, supra note 149, at 19 & n.100 (citing five federal actions under § 14141 addressing local agencies' responses to sexual assault
crimes).
198
That is, federal criminal law is effective at successful prosecutions, if not at reducing the underlying social problem targeted by criminal
law. See generally, e.g., Steven B. Duke & Albert C. Gross, America's Longest War: Rethinking Our Tragic Crusade Against Drugs (1993)
(examining and critiquing American drug policies).
199
See, e.g., 18 U.S.C. § 241 (2012) (criminalizing conspiracy); id. § 242 (criminalizing willful deprivation of federal rights while acting
under color of law); id. § 249 (criminalizing willful bodily injury because of victim's race, religion, sexual orientation, or gender identity).
Federal prosecutors focus on other serious direct-victim crimes as well, such as human trafficking and child pornography. See U.S. Dep't of
Justice, supra note 145 (describing prioritization of such cases). But federal involvement in that realm is presumably motivated not so much
by a need for oversight of untrustworthy state prosecutors as by the greater resources, expertise, and interstate jurisdictional advantages that
federal prosecutors bring to such cases. Criminal prosecution is only one aspect of federal policies to reduce custodial deaths and improper
uses of force by police. Other strategies include investigating abuse and corruption in local police agencies and using civil injunctive
remedies against those agencies to change patterns of wrongdoing, as well as gathering data on custodial deaths and police uses of force. See
Harmon, Policing Reform, supra note 21; Simone Weichselbaum, Policing the Police: As the Justice Department Pushes Reform, Some
Changes Don't Last, Marshall Project (May 26, 2015), https://www.themarshallproject.org/2015/04/23/policing -the-police (describing the
difficulties in achieving lasting reforms in local police departments through federal consent decrees).
200
See 18 U.S.C. § 242 (liability for an official who "willfully subjects any person … to the deprivation of any [federal] rights"); United
States v. Screws, 325 U.S. 91, 103 (1945) (interpreting § 242's willfulness term to require "specific intent to deprive a person of a federal
right").
201
The prosecution of South Carolina police officer Michael Slager provides an example. State prosecutors charged Slager with murder;
federal prosecutors charged him with criminal violation of civil rights under 18 U.S.C. § 242. For an example of this contrast between state
and federal charges for the same offense, see Blinder, supra note 52; Michael S. Schmidt & Matt Apuzzo, Officer Is Charged with Murder of
a Black Man Shot in the Back, N.Y. Times, Apr. 8, 2015, at A1.
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202
See Perrin v. United States, 444 U.S. 37, 50 (1979) (broadly interpreting "bribery" in 18 U.S.C. § 1952 to include bribery of private
individuals); supra Part III.B.1 and note 161 (citing Perrin in discussion of anti-corruption prosecutions under 18 U.S.C. § 1952).
203
See, e.g., Wis. Stat.§§175.47, 950.04(1v)(do), 950.08(2g)(h) (2014) (codifying Wis. Act 348 (2013)) (requiring investigations of "officerinvolved
deaths" to be conducted by investigators from a different agency).
204
See Data Collection: Mortality in Correctional Institutes (MCI) (Formerly Deaths in Custody Reporting Program (DCRP)), Bureau Just.
Stat., https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243 (last visited Oct. 30, 2018) (providing data collection since 2000 for jails, since
2001 for prisons, and since 2003 during arrests). The Death in Custody Reporting Act of 2000,42 U.S.C. § 13704 (2006), required local
agencies to report deaths until it lapsed in 2006. Hunter Schwartz, Congress Decides to Get Serious About Tracking Police Shootings, Wash.
Post (Dec. 11, 2014), https://www.washingtonpost.com/news/post-politics/wp/2014/12/11/congress-decides-to-get-serious-about-tracking -
police-shootings. It was renewed in 2014. Death in Custody Act of 2013, Pub. L. 113-242,128 Stat. 2860 (codified as amended in scattered
sections of 42 U.S.C). In the interim years, the Bureau collected data voluntarily reported by local agencies. Pete Kasperowicz, House Bill
Would Require States to Report on Prisoner Deaths, Hill (Dec. 6, 2013), https://thehill.com/blogs/floor-action/government-oversight/192354-
house-to-require-states-to-report-on-prisoner -deaths.
205
See supra note 113.
206
E.g., Ed Krayewski, Prosecutors in Chicago, Cleveland Lose Re-Election Bids After Police Abuse Controversies, Reason (Mar. 16,
2016), http://reason .com/blog/2016/03/16/prosecutors-in-chicago-cleveland-lose-re.
207
Id.; see also Justin Glawe, Anita Alvarez, Chicago's Top Prosecutor, Cleared Killer Cops 68 Times, Daily Beast (Mar. 14, 2016),
http://www .thedailybeast.com/articles/2016/03/14/anita-alvarez-chicago-s-top-prosecutor -cleared-killer-cops-68-times.html.
208
See Manslaughter Conviction for Ex-Officer, N.Y. Times, Aug. 5, 2016, at A15; Richard Perez-Pena, Officer Indicted in Shooting Death
of Unarmed Man, N.Y. Times, July 30, 2015, at A1; Mark Berman, Minn. Officer Acquitted in Shooting of Philando Castile During Traffic
Stop, Dismissed From Police Force, Wash. Post (June 17, 2017), https://www.washingtonpost.com/news/post -nation/wp/2017/06/16/minnofficer-acquitted-of-manslaughter-for-shooting
-philando-castile-during-traffic-stop; Chris Dixon, Ex-Officer Seeks Bond in Shooting Death
of Walter Scott, N.Y. Times (Sept. 11, 2015), https://www. nytimes.com/2015/09/12/us/officer-seeks-bond-in-shooting-death-of-walter -
scott.html (stating that officer was charged with murder); Wil S. Hylton, Baltimore vs. Marilyn Mosby, N.Y. Times Mag. (Sept. 28, 2016),
https://www.nytimes.com/2016/10/02/magazine /marilyn-mosby-freddie-gray-baltimore.html (describing the failure to convict any of six
officers indicted for the April 2015 death of Freddie Gray); Justin Juozapavicius, Tulsa Officer Acquitted In Man's Shooting Death Is
Returning To The Police Force, Associated Press (May 19, 2017), https://www.apnews.com/9af40bcdbbd84f6e95fb3a430d4016c0.
209
Monica Davey & Mitch Smith, Justice Department Is Expected to Investigate Chicago Police, N.Y. Times, Dec. 7, 2015, at A10
(reporting on the Justice Department's investigation into the patterns and practices of the Chicago Police Department in the wake of Laquan
McDonald shooting); Mitch Smith, Chicago Officer Pleads Not Guilty to Charge of Murder in Death of a Teenager, N.Y. Times, Dec. 30,
2015, at A12 (stating that a police officer was charged for the 2014 fatal shooting of a teenager just before video footage of the incident was
released).
210
For one notable political response, see La. Stat. Ann. §§14:107.2(A), (E) (2018) (creating the "Blue Lives Matter" law); Kevin Conlon,
Louisiana Governor Signs "Blue Lives Matter' Bill, CNN (May 27, 2016), https://www.cnn.com/2016/05/26/us/louisiana-blue-lives-matterlaw/index.html
(describing passage of House Bill 953).
211
See, e.g., W. David Ball, Tough on Crime (on the State's Dime): How Violent Crime Does Not Drive California Counties' Incarceration
Rates - And Why It Should, 28 Ga. St. U. L. Rev. 987, 1018-34 (2012) (analyzing data from 2000-2009 and describing how county-level
criminal justice officials, including prosecutors, vary greatly in their use of state incarceration as a response to crime); Erika Martin, While
Some California DAs Are Throwing Out Old Pot Convictions, L.A. County's Jackie Lacey Takes a Different Path, KTLA5 (Feb. 3, 2018),
https://ktla.com/2018/02/03/while-some-california-das-are-throwing-out -old-pot-convictions-angelenos-will-have-to-be-proactive-inclearing-records
(describing different policies among California district attorneys on expungement of marijuana offenses); cf. Civil Rights
Div., U.S. Dep't of Justice, Investigation of the Ferguson Police Department 10-15 (2015),
https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf (describing
prosecution policies motivated by revenue-generating goals).
212
The alternative of administrative review within the Crown Prosecution Service relies on whatever independence is sustained by the
bureaucratic hierarchy, administrative regulations, and professional norms. See supra note 111 and accompanying text.
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not unique hybrid: it provides independent review removed from local electoral politics, yet power remains in the hands of
213
U.S. Attorneys and the U.S. Attorney General are political appointees, U.S. Const. art. II, § 2 (Appointments Clause); 28 U.S.C. § 541
(2012) ("The President shall appoint … a United States attorney for each judicial district."), although much of the Justice Department staff are
nonpolitical, civil service appointees. See Government Ethics Outline, U.S. Dep't Just., https://www .justice.gov/jmd/government-ethicsoutline
(last updated July 5, 2017) (explaining ethics rules for "non-career" political appointees and for career employees).
214
See Sanford C. Gordon, Assessing Partisan Bias in Federal Public Corruption Prosecutions, 103 Am. Pol. Sci. Rev. 534, 549 (2009)
(finding evidence of political party bias among federal prosecutors).
215
The clearest historical example would be the post-Reconstruction decades, starting roughly after 1876, when the federal government
retreated from civil rights enforcement in the former Confederate states, including from prosecutions for criminal rights violations and
offenses that states declined to charge, including for homicides. See generally Eric Foner, Reconstruction: America's Unfinished Revolution,
1863-1877, at 524-86 (2014) (describing declining enthusiasm for civil rights enforcement and waning Republican political influence in the
South); William Gillette, Retreat from Reconstruction, 1869-1879, at 190-200 (1979) (describing Southern Democrats efforts to resist civil
rights enforcement); George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of
1866, at 95-100 (2013) (describing Supreme Court decisions limiting the enforcement of the Civil Rights Act of 1866).
216
Alaska, Connecticut, and New Jersey do not elect prosecutors. Perry, supra note 122, at 2. Delaware and Rhode Island elect state
attorneys general, whose appointed staff handle all prosecutions. Id. at 11. Except in these jurisdictions, state attorneys general and justice
departments generally have little authority over local prosecutors' offices. Cf. Michael J. Ellis, The Origins of the Elected Prosecutor, 121
Yale L.J. 1528, 1528 n.1 (2012) (noting that elected prosecutors are unique to the United States).
217
A classic account of prosecutors' political influence is William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev.
505, 546-57 (2001). For an insightful account of federal prosecutors successfully convincing Congress to expand their discretion at the
expense of judges' sentencing authority, see United States v. Kupa, 976 F. Supp. 2d 417, 419-27 (E.D.N.Y. 2013) (describing the legislative
history and Justice Department lobbying related to federal drug statutes, notably 21 U.S.C. § 841 (2012)).
218
See, e.g., Milliken v. Stone, 7 F.2d 397, 399 (S.D.N.Y. 1925), aff'd 16 F.2d 981 (2d Cir. 1927) ("The remedy for [dereliction of the
prosecutor's duty] is with the executive and ultimately with the people."); In re Hickson, 2000 PA Super 402, P 36 ("The prosecutor is elected
to run her office using her broad discretion fairly and honestly. If she fails to do so, … the remedy lies in the power of the electorate to vote
her out of office."); In re Padget, 678 P.2d 870, 873-74 (Wyo. 1984) ("District and county attorneys hold elective offices; if their constituents
are unsatisfied, they are free to express their feelings at the voting polls."); cf. Cheney v. U.S. Dist. Court, 542 U.S. 367, 386 (2004) ("The
decision to prosecute a criminal case … is made by a publicly accountable prosecutor."). For discussion of this point, see Brown, supra note
126, at 33-41.
219
See Adam M. Gershowitz, 12 Unnecessary Men: The Case for Eliminating Jury Trials in Drunk Driving Cases, 2011 U. Ill. L. Rev. 961,
966-69, 984-87 (2011).
220
Emily J. Sack, Battered Women and the State: The Struggle for the Future of Domestic Violence Policy, 2004 Wis. L. Rev. 1657, 1689-90
(2004).
221
Police departments also widely adopted mandatory arrest policies, especially for domestic violence offenses. For discussions and
examples of both police and prosecution policies on domestic violence and sexual assault, see Aya Gruber, The Feminist War on Crime, 92
Iowa L. Rev. 741, 760 & n.90 (2007); Sack, supra note 220. Note how this resembles the mandatory prosecution duty familiar in European
systems, although it is an internal policy rather than statutory mandate. See supra Part II.B.1.
222
See supra note 186 and accompanying text.
223
Id.
224
See, e.g., Fla. Stat. § 741.2901(1)-(2) (2018) ("Each state attorney shall develop special units or assign prosecutors to specialize in the
prosecution of domestic violence cases … [who] shall receive training in domestic violence issues… . The state attorney in each circuit shall
adopt a pro-prosecution policy for acts of domestic violence … ."); Wis. Stat. § 968.075(7) (2018) ("Each district attorney's office shall
develop, adopt and implement written policies encouraging the prosecution of domestic abuse offenses.").
225
Some state legislatures enact voluntary charging criteria in statutes that affirm prosecutorial discretion. See, e.g., Wash. Rev. Code §
9.94A.411 (2018) ("A prosecuting attorney may decline to prosecute, even though technically sufficient evidence to prosecute exists," and
providing a "Guideline/Commentary" for such decisions).
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226
See supra note 224 (citing state statutes in Florida and Wisconsin that encourage or mandate local prosecutors to adopt policies that
improve enforcement).
227
Gershowitz, supra note 219.
228
On domestic violence and rape offenses, see Gruber, supra note 221, at 752-63 (recounting the feminist movement's efforts to reform
domestic violence and rape prosecution law and policies); id. at 760 & n.90 (citing statutes that require prosecutors to adopt "proprosecution"
policies for domestic violence); id. at 763-74 (describing the history of victim rights' movement); Sack, supra note 220, at 1666,
1689-90 (2004) (describing the women's movement as focused on domestic violence since the 1960s and arguing that mandatory prosecution
policies are necessary for police and prosecutors to make the "right choices"); Christine O'Connor, Note, Domestic Violence No-Contact
Orders and the Autonomy Rights of Victims, 40 B.C. L. Rev. 937, 942-43 (1999) (arguing that prosecutors' view of domestic violence as a
private problem contributed to reluctance to prosecute). On drunk-driving law and policy, see Gershowitz, supra note 219 (describing efforts
by MADD and other groups to toughen laws and enforcement efforts against drunk driving and summarizing subsequent law reform).
229
See supra note 228.
230
Cf. Long & Wilkinson, supra note 186, at 1 (explaining that specialized prosecution units provide prosecutors with the opportunity to
work with "community partners").
231
See, e.g., Jeffrey Ulmer & Christopher Bader, Do Moral Communities Play a Role in Criminal Sentencing? Evidence from Pennsylvania,
49 Soc. Q. 737, 753, 757 (2008) (finding in county-level data that "Christian religious homogeneity" increases the likelihood of incarceration,
especially when Christian denominations are civically engaged, partially through the effect of local Republican Party dominance via the
election of judges and prosecutors).
232
Gershowitz, supra note 219.
233
See generally Richard Perez-Pena & Timothy Williams, Glare of Video Is Shifting Public's View of Police, N.Y. Times, July 31, 2015, at
A1 (describing survey data on public views about police and apparent effects of video evidence on public opinion); Santo, supra note 186
(describing enforcement challenges for crimes against prison inmates).
234
Ian Lovett, Los Angeles Joins Debate on Force After Police Killing of a Homeless Man, N.Y. Times, April 17, 2016, at A12 (describing
the "pressure that prosecutors now face to move aggressively against officers who kill civilians" and quoting an activist who says that the Los
Angeles prosecutor's failure to indict in one case would be "political suicide").
235
See Carlos Berdejo & Noam Yuchtman, Crime, Punishment, and Politics: An Analysis of Political Cycles in Criminal Sentencing, 95
Rev. Econ. Stat. 741, 754-55 (2013) (finding that elected judges in Washington state assign longer sentences in years closest to elections);
Sanford C. Gordon & Gregory A. Huber, The Effect of Electoral Competitiveness on Incumbent Behavior, 2 Q.J. Pol. Sci. 107, 133 (2007)
(comparing partisan and nonpartisan judicial elections in Kansas and finding strong effects on sentencing when judges in partisan elections
expect or face challengers). See generally, Jed Handelsman Shugerman, The People's Courts (2012) (providing a history of elected judges).
236
For a knowledgeable account of the U.S. Justice Department's traditions of professionalism that mostly minimize political influence in
charging decisions, see generally Samuel W. Buell, Capital Offenses: Business Crime and Punishment in America's Corporate Age (2016).
But see Gordon, supra note 214; cf. Scott Ashworth, Electoral Accountability: Recent Theoretical and Empirical Work, 15 Ann. Rev. Pol.
Sci. 183, 183-201 (2012) (surveying theoretical and empirical research into the connection between political accountability and policy
decisions).
237
See, e.g., In re Hickson, 2000 PA Super 402, P 41 (finding that private prosecutions "constitute[] a recognition by the legislature that the
office of the district attorney should be subject to a system of checks and balances"); In re Piscanio, 344 A.2d 658, 660-61 (Pa. Super. Ct.
1975) ("The judge's independent review of the complaint checks and balances the district attorney's decision and further hedges against
possibility of error.").
238
Outside the United States, prosecution agencies are commonly under a politically accountable justice minister or attorney general, whose
political judgment, in principle, operates only at the level of broad policy and should not interfere with specific case decisions. See, e.g.,
Prosecution of Offences Act 1974, § 2(5) (Act No. 22/1974) (Ir.) http:/
/www.irishstatutebook.ie/eli/1974/act/22/section/2/enacted/en/index.html ("The Director [of Public Prosecutions] shall be independent in the
performance of his functions."). Australia's Office of the Commonwealth Director of Public Prosecutions, whose director is appointed for a
seven-year term, is an independent prosecution service within the Commonwealth Attorney-General's portfolio, but functions independently
of the Attorney-General and the political process. Director of Public Prosecutions Act 1983 (Cth) (Austl.) (as amended 2012); About Us,
Commonwealth Dir. Pub. Prosecutions,http://www.cdpp.gov.au/AboutUs (last visited Oct. 30, 2018); see also Mark Findlay et al., Australian
Criminal Justice 125-26 (1994) (describing "the development of prosecutorial independence from the executive"). Canada's Public
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professional, rival, and politically accountable executive branch officials.
The insight of the U.S. approach is that, for many types of [*914] underenforcement, federal oversight combined with
democratically responsive local prosecutors can perform the same function as judicial review and private prosecution of
correcting bad declination decisions driven by institutional allegiances, cultural biases, and favoritism. Politically responsive
criminal justice sometimes works relatively well at changing prosecution practices to serve victim interests that majorities or
strong interest groups embrace. Politics has brought meaningful reforms to prosecution for drunk driving, for example, and it
has led to improvements, if still insufficient ones, regarding domestic violence and sexual assault crimes. But political
accountability has not worked as well to remedy underenforcement when key victim groups have less public sympathy, or key
defendant groups, such as police, have a lot. Redundant prosecution authority, in the form of federal oversight, has a similarly
mixed track record. Federal law has done much to compensate for state underenforcement of public corruption offenses. It has
made significant but less ambitious and successful commitments in the context of police violence. And federal authorities so far
have attempted to reinforce state sexual assault enforcement only at the margins.
The track record of the U.S. responses to underenforcement, then, is mixed. But it is not clear that the alternative safeguards
that predominate elsewhere are, on their own, clearly superior. Private prosecution is little use for victims with few financial
resources or who are legally unsophisticated. Judicial review of declination can be exceedingly deferential, especially if statutes
and regulations do not provide courts with clear criteria against which to assess prosecutorial decision making. Jurisdictions
strongly committed to reducing unjustified declinations would combine most or all of these mechanisms. U.S. jurisdictions
arguably have a history that should have made them especially likely to do so. States once permitted and relied on private
prosecutions; judicial authority to review executive action, outside of prosecutor charging, is at least as robust here as in
England; the movement for crime victim rights was as effective here as anywhere. The failure to devise more comprehensive
safeguards suggests that certain specific pockets of underenforcement - involving police, marginalized victim groups, and
sexual assaults - are especially hard to remedy, regardless of readily available solutions.
Minnesota Law Review
Copyright (c) 2018 Minnesota Law Review Foundation
Minnesota Law Review
End of Document
Prosecution Service describes itself as "an independent prosecution authority." See About the Public Prosecution Service of Canada, Pub.
Prosecution Serv. Can., http://www.ppsc-sppc.gc.ca/eng/bas/dpp-dpp.html (last updated Apr. 4, 2018). The Canadian Supreme Court affirms
the prosecutor's wide discretion with reference to his political independence. See Krieger v. Law Society of Alta., [2002] 3 S.C.R. 372, para.
32 (Can.) ("The independence of the Attorney-General, in deciding fairly who should be prosecuted, is … a hallmark of a free society."
(quoting In re Hoem v. Law Soc'y of B.C. (1985), 63 B.C.L.R. 36 (Can. B.C. C.A.))).
239
For a sample of longstanding criticisms of unregulated prosecutorial discretion, see Davis, supra note 123; Roscoe Pound, Criminal
Justice in America 183 (1930) (criticizing the "intimate connection of the prosecutor's office with politics."); James Vorenberg, Decent
Restraint of Prosecutorial Power, 94 Harv. L. Rev. 1521, 1554-60 (1981) (arguing that the scope of prosecutorial discretion is too broad). See
generally Raymond Moley, Politics and Criminal Prosecution (1929) (criticizing political influence over prosecution).
DAVID SCHOEN